Journalism and Freedom of Expression

The changing role of journalists

A particular challenge that arises in the context of digital rights is the changing roles of journalists and publishers online. Journalists are vitally important protagonists when discussing digital rights and freedom of expression because they investigate and criticise the actions of the state and other powerful actors as part of the exercise of their functions. The particular role that the media plays in achieving an open and democratic society, and the special protections that this deservedly engages, have frequently been emphasised by the courts. Of course, the media industry has also experienced dramatic and rapid change as a result of the rise of the internet and social media, thus defending press freedom has become more complicated and needs to be tailored to the new and evolving dynamics of the media ecosystem.

Nevertheless, General Comment No 34(1) expressly provides that journalism is a function shared by a wide range of actors, from professional full-time reporters and analysts to bloggers and others who engage in forms of self-publication in print and on the internet. Thus, journalistic protections should be construed broadly to apply to both professional and citizen journalists who are disseminating information in the public interest, so as not to unduly constrain freedom of expression.

In 2013, the UN Special Rapporteur on Freedom of Expression stated that “[n]ew technologies have provided unprecedented access to means of global communication, and have therefore introduced new means of reporting on news and events around the world.”(2) The report notes that, although citizen journalists are not trained professional journalists, it is nevertheless an important form of journalism as it can contribute to a richer diversity of views and opinions, and can provide an immediate, insider’s view of a conflict or catastrophe.

In interpreting the ICCPR in relation to freedom of the press, General Comment No. 34 states:(3)

“The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output… As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, state parties should take particular care to encourage an independent and diverse media.”

Recently, the Constitutional Court of South Africa provided a resounding defence of freedom of the press in their role of providing access to information for the public and enabling freedom of expression in the 2021 case of amaBhungane v Minister of Justice.(4)

In defending the right of journalists to protect the confidentiality of their sources and to be safe from surveillance, the judgment stated:

“I agree that keeping the identity of journalists’ sources confidential is protected by the rights to freedom of expression and the media. This Court has acknowledged the constitutional importance of the media in our democratic society, and has confirmed that “[t]he Constitution thus asserts and protects the media in the performance of their obligations to the broader society, principally through the provisions of section 16”. It follows that the confidentiality of journalists’ sources, which is crucial for the performance by the media of their obligations, is protected by section 16(1)(a).”(5)

In the earlier High Court judgment of the same case, the Court pertinently held that:

“In a country that is as wracked by corruption in both our public institutions and in our private institutions as ours is, and where the unearthing of wrongdoing is significantly the work of investigative journalists, in an otherwise, seemingly, empty field, it is hypocritical to both laud the press and ignore their special needs to be an effective prop of the democratic process.”

The proliferation of Strategic Lawsuits Against Public Participation (SLAPP) by political and corporate entities is becoming an increasingly prevalent threat to journalists. In South Africa, numerous instances of defamation and urgent proceedings have been employed in efforts to suppress activists and journalists:

• In the case of Maughan v. Zuma, former President Jacob Zuma initiated a private criminal prosecution against a journalist for an article she authored about him. However, the High Court, in dismissing Zuma’s case, underscored the importance of protecting journalists from intimidation through SLAPP suits, affirming the fundamental freedoms of expression and the press.

• In Mazetti Management Services v. Amabhungane, a private company obtained an ex-parte and in-camera court order, compelling journalists to surrender documents and restraining them from reporting on the matter. Upon reconsideration, the High Court denounced this order as an abuse of the ex-parte procedure, citing international principles advocating for the protection of journalists from such misuse of legal and judicial processes.

While South African courts remain vigilant against SLAPP tactics, the persistence of powerful actors in seeking to silence dissent is anticipated. Fortunately, international, regional, and comparative legal frameworks offer valuable tools to counteract these attempts at intimidation and censorship.

New threats to journalism

The rise of social media and the internet has not only changed the environment in which journalists work and the role that they play in society, as well as the financial model that supports journalism as an industry, it has also given rise to a host of new threats to journalists and press freedom. The internet has become a central platform for the dissemination of journalistic content, as well as a primary mechanism through which journalists engage, on an individual and professional level, with their audiences. The proliferation of mis- and disinformation online has further exacerbated these trends by undermining the credibility of traditional media and creating toxic online communities in which journalists are forced to engage.

Threats faced by women journalists

While all journalists are at risk of online violence and harassment, women journalists uniquely face this harassment due to their sex or gender and are particularly prone to it. A survey by the UN Educational, Scientific, and Cultural Organisation (UNESCO) found:

• Nearly three-quarters of women journalists have experienced online violence,
• 30% responded to online violence by self-censoring on social media. Black, indigenous, Jewish, Arab, and lesbian women journalists experienced both the highest rates and most severe impacts of online violence.
• 20% of women surveyed were physically attacked or abused offline in connection with online violence that they had experienced.(8)

The online assaults against women journalists represent a significant menace to their safety, gender parity, and press freedom.(9) These attacks, often orchestrated, sexually explicit, and malevolent, frequently focus on women belonging to religious or ethnic minorities, or individuals who identify as gender nonconforming.

The systemic harassment and abuse faced by women and gender minority journalists online have serious consequences for diversity and representation in the media by chilling the participation of diverse voices. It also results in physical, medical, psychological, professional, and other impacts in the real world that can be devastating.

As stated by UNESCO, such harassment “amounts to an attack on democratic deliberation and media freedom, encompassing the public’s right to access information, and it cannot afford to be normalised or tolerated as an inevitable aspect of online discourse, nor contemporary audience-engaged journalism.” It, therefore, amounts to a new and emerging threat to freedom of expression that can and should be addressed under existing international standards and human rights law.

In a significant and welcome development, the 2019 ACHPR Declaration of Principles on Freedom of Expression and Access to Information in Africa (African Declaration) calls on states to guarantee the safety of journalists and media practitioners, and to “take specific measures to ensure the safety of female journalists and media practitioners by addressing gender-specific safety concerns, including sexual and gender-based violence, intimidation and harassment.”(10)

The ACHPR in a 2022 Resolution further reaffirms that States must “[p]rotect women journalists from digital violence by repealing overly wide surveillance laws that perpetuate their vulnerability”.(11) Further, the ACHPR in its 2023 Joint Declaration on Media Freedom and Democracy recommends to online platforms that they consider the disproportionate risks of online attacks faced by women journalists in their human rights impact assessments and recommends that States adopt comprehensive measures for the safety of journalists in a manner that integrates gender and intersectionality perspectives.(12)