National security and public order

7.1   How does national security affect the media?

National security considerations may affect the media in a number of ways.  The most obvious is when restrictions are imposed on what the media can report or comment on concerning matters which may affect the security of the state.  Such restrictions are invariably tightened during periods of national emergency, e.g. war or threat of external aggression by a foreign power.  National security may also affect journalists in terms of their movement within a country.  Certain parts of the country, and certain installations, facilities, offices, etc. are usually kept out of bounds on the grounds that access to such places may compromise the security of the state.  Likewise, the media may be denied access to certain materials, e.g. official documents, for fear that disclosure of such documents may prove beneficial to a country’s enemies.

 

7.2   How does media law deal with national security?

Generally speaking, the legal system of every country allows the government to impose restrictions on freedom of expression in situations where national security may be at risk.  The extent of the restrictions would depend on a number of factors, including the tightness with which terms like ‘national security’ or ‘security of the state’ are defined, the threshold for activation of the restrictions, the exceptions allowed for public interest disclosures, the provisions made for appeals against executive orders to an independent authority, and, most important of all, the sagacity with which such laws are implemented.  Some laws are ‘permanent’ laws, which operate even during normal times (e.g. an Official Secrets Act), while others are exceptional, and come into force only during pre-determined situations of emergency (e.g. censorship orders).

 

7.3   Is there any acceptable definition of ‘national security’?

Not really.  This term is defined in innumerable ways by different authorities.  Some legal systems provide a very broad definition (e.g. any conduct which is “inimical to the well-being of the nation”) whereas others are more nuanced.  Ideally, the definition should be tightly drawn so that the scope for abuse of this power is reduced as far as possible.  International law offers some guidance on the subject: for example, one document adopted by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities notes that:

National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.


National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.[1]

 

A genuine threat to the life of the nation (and not, for example to the stability of a government) is therefore the threshold at which curbs on the media can be justified.

 

7.4  What are the legal standards in this area?

A number of cases involving national security have arisen over the years, and this has led to a significant body of case law being created at both domestic and international level.  In terms of best practice, it may be worthwhile to ask two questions before, say, a journalist is condemned for breaching, or threatening to breach, national security.  The first is: what is the intent behind the speech or writing that is being questioned – is it to engage in rational, if heated, debate with a view to bringing about reform through peaceful means, or is it to incite people into violent action against the state?  As the Supreme Court of the United States has noted in a landmark case, even advocacy of the use of force can only be banned or punished “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[2] 

The second question is: is there a real and immediate likelihood of violence arising from the speech or writing being questioned?  Only if such a connection can be establishment will any restrictions on free speech be justified.


7.5  What approach have international courts taken in relation to restrictions on the media for national security reasons?

Generally speaking, international courts and international human rights bodies have tended to apply the national security exception to freedom of expression narrowly.  They have held that the threshold for imposing restrictions on free speech must be quite high, and that where other means of furthering the interests of national security are available, the government should resort to those means first. 

In the famous Spycatcher case, for example, the European Court of Human Rights refused to accept a plea by the British government that an injunction which had initially been granted against the sale of a book which had been written in breach of the country’s secrecy laws needed to be continued even after the information sought to be shielded from public disclosure had become public through other sources.[3]

However, a different approach was taken when a ‘media ban’[4] which had been imposed on alleged terrorists and their supporters in Northern Ireland, was challenged by a group of journalists.  Here, the European Commission on Human Rights (a body which acted as a first port of call under the Council of Europe arrangements) held that, given the impact of the electronic media and given the possibility of coded messages being relayed by terrorist suspects, the impugned measures were a justifiable restriction on freedom of expression.[5]

 

7.6  What is the offence of ‘sedition’ and how relevant is it to the media?

 

Sedition is connected with the violent overthrow of a duly constituted government.  A typical definition of sedition is to be found in the Indian Penal Code, which describes it as an:

act of bringing or attempting to bring into hatred or contempt the government established by law, or the excitement or attempt to excite disaffection towards the government by words, signs, or other visible representation.[6]

As can be seen, the offence also encompasses the use of words, signs or other visible representation, which means that in appropriate – but rare – cases it can affect the media.  Generally speaking, the media would be caught by a provision – usually accompanying the main offence – which criminalises the dissemination of seditious matter.

However, the law usually provides that mere criticism, however strong, of a government cannot invite a charge of sedition.  Indeed, as the relevant provision in the Indian Penal Code goes on to say, “comments expressing disapproval of Governmental measures with a view to obtaining their alteration by lawful means would not amount to sedition.”[7]  What is required is a clear intent to subvert the government by violent means.

The threshold that requires to be crossed seditious acts to become actionable is quite high, as a leading case from India illustrates.  When a journalist, Brahma Chellaney, published a news report alleging that a large number of innocent Sikh pilgrims had been shot in cold blood by the Indian army after the army had carried out a violent anti-insurgency operation in the Golden Temple at Amritsar, he was charged with sedition, presumably on the grounds that his report might incite the public to overthrow the government.  The case provoked strong criticism from fellow media practitioners, lawyers and civil liberties, and was withdrawn before it got to a trial.  It is unlikely that any court would have entered a finding of sedition in the circumstances of the case.

That point is underlined by a judgment of the Supreme Court of Canada which, speaking through Justice Kellock, formulated the requirement for a successful prosecution thus:

It cannot be that words which, for example, are intended to create ill-will even to the extent of violence between any two of the innumerable groups into which society is divided, can, without more, be seditious. In my opinion to render the intention seditious, there must be an intention to incite to violence or resistance or defiance for the purpose of disturbing constituted authority. I do not think there is any basis in the authorities for defining the crime on any lower plane.[8]

 

7.7 What about ‘causing disaffection’ among the police or armed forces of the state?

Many legal systems make it an offence for anyone to say or do anything which has the effect of causing disaffection among the law enforcement authorities.  In such situations, the media need to be careful that they do not aid or abet this offence by carrying articles that may amount to causing disaffection.

Merely reporting, as an item of news or current affairs, that someone had, for example, asked soldiers or policemen to desist from carrying out their duties in certain circumstances will not amount to aiding and abetting the causing of disaffection.

 

7.8   How do national courts deal with national security matters?

The record in this area is quite mixed.  In many countries, the courts are cautious and uphold orders which rely on the executive’s assessment of threats to national security.  However, in other countries, judges have queried such assessment and nullified restrictions on free speech.

For example, the Supreme Court of Israel in 1985 struck down an order from the country’s Broadcasting Authority which required the media to desist from interviewing “public personalities

identified with those who see the Palestine Liberation Organisation as the exclusive or legitimate representative” of the Palestinian people.  This order, said the court, was too vague and therefore an unjustified interference with the media’s right to freedom of expression.[9]

Likewise, the Constitutional Court of South Korea held the phrase “military secrets” in a law which made it an offence to collect or disclose such secrets an offence.  In the opinion of the court:

The definition of military secrets is ambiguous and misleading enough to restrict the freedom of information and expression. [Accordingly,] there needs to be a more exact and detailed specification. Everything related to military affairs cannot be defined as a military secret.[10]

 

7.9       When would words advocating a criminal act or the use of force be penalized?


The standard here differs from country to country.  In some countries the courts take a strict and literal view of legal provisions which make advocacy of criminal or violent acts an offence.  In others, such laws are made subject to certain conditions.

 

A landmark case from the United States will illustrate the latter point.  The US Supreme Court, in Brandenburg v. Ohio, ruled that advocacy of violence will only become punishable if: (1) the advocacy is “directed to inciting or producing imminent lawless action”; and (2) the advocacy is also “likely to incite or produce such action.”[11] This formulation is often referred to as the ‘clear and present danger’ test, and it has been used in other countries as well.

 

7.10     How does the law deal with words or actions that may have the tendency to provoke a breach of the peace or provoke feelings of hatred or disharmony between different racial, religious or other groups?


In a number of countries – particularly countries that are deeply divided on racial, religious or other lines – the law makes it an offence to promote or attempt to promote feelings of hatred or disharmony between different population groups.  The intention behind such laws is to prevent public disorder, but courts have a difficult job determining the threshold at which an act would become punishable.

 

Generally speaking, good practice in this area requires judges to give freedom of expression the utmost scope and to only penalise acts which have a clear propensity to provoke a breach of the peace, applying the ‘clear and present danger’ test.  This is illustrated in an important case which was decided by the Supreme Court of India in 1989. Here, a motion picture produced for public exhibition strongly criticised the government’s policy of affirmative action for certain traditionally disadvantaged groups.  Irked by this criticism, some persons threatened violence against cinemas which were scheduled to show the film.  The Board of Censors, on hearing about these threats, ordered a ban on the film.  The ban was challenged by the film’s producers on the grounds that it violated their freedom of expression, and the Supreme Court held that there was no justification for the ban.  The judges explained the approach that needs to be adopted in such situations in the following words:

There does indeed have to be a compromise between the interest of freedom of expression and social interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a `spark in a powder keg'.[12]

 

7.11 What about inciting disaffection against the government?

This is another legal risk that the media has to face in some countries.  It is analogous to the offence of sedition, though there are some differences.  In most liberal democracies, the offence of “causing disaffection against the government” is obsolete and no prosecutions have been brought under this head for decades. 

Where a charge of causing disaffection is made, the prosecution normally needs to meet a high standard of proof that the words or actions in question was likely to lead to imminent violence or serious public disorder.  Mere criticism of the government, however robust in tone or effect, cannot amount to causing disaffection, as a Pakistani case demonstrates.  In this case, heard by the Peshawar High Court, a man was sought to be punished for calling the government “a government of thieves”.  The court ruled that this could not, by any reasonable standard, constitute an offence of causing disaffection, given that everyone had a constitutional right to criticise the government as part of his right to freedom of expression.[13]

The Supreme Court of Sri Lanka has also affirmed the importance of dissent in open societies.  Holding that “[t]he right to … criticise Governments and political parties, policies and programmes is fundamental to the democratic way of life,” the court declared in a 1993 judgment that:

 [T]he expression of views which may be unpopular, obnoxious, distasteful or wrong, is nevertheless within the ambit of freedom of speech and expression provided of course there is no advocacy of, or incitement to, violence or other illegal conduct ... Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.[14] 

 

 



[1]              Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex to UN Doc E/CN.4/1984/4 (1984). 

[2]                 Brandenburg v. Ohio, 395 U.S. 444 at 447 (1969). 

[3]              The Observer and Guardian v. United Kingdom, Judgment of 26 Nov. 1991, Series A no. 216, para. 69. 

[4]              Under the terms of the ban, although the subjects of the ban could be interviewed on radio or television, their voices could not be broadcast. 

[5]              Purcell v. Ireland, Appln. No. 15404/89, Admissibility Decision of 16 April 1991. 

[6]              s. 124A. 

[7]              Ibid. 

[8]              Boucher v. the King [1951] 2 DLR 369 at 389. 

[9]                 Zikhrony v. Broadcasting Authority, HC 37 (1) PD 757 

[10]             "Military Secrets Protection Act Lacks Legitimacy on Freedom of Information Grounds", Korea Times, 26 Feb. 1992. 

[11]             395 US 444 (1969). 

[12]                 Rangarajan v. Jagjivan Ram and Ors.; Union of India and Ors v. Jagjivan Ram 1989 (2) SCR 204 at 226. 

[13]             Hussain Bakhsh Kausar v. The State, PLD 1958 (WP) Peshawar 15. 

[14]                 Amaratunga v. Sirimal & Ors., S.C. Appln. No. 468/92, decided on 6 March 1993, at pp. 5-6.