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    Who Constitutes a Journalist?

    Module 1: Key Principles of International Law and Freedom of Expression

    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 eco-system.

    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(2) “[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.”  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, States parties should take particular care to encourage an independent and diverse media.”

    Recently, the High 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 2019 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:

    “Despite much lauding of the role of the media and the express guarantee of freedom of expression and of the media, in particular, in section 16(1)(a) of the Constitution, there has been a reluctance to take the next step needed to recognise journalists as a special class of persons whose intrinsic working methods warrant especial protection, such as lawyers enjoy.(5)

    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.”(6)

    Footnotes

    1. General Comment No. 34 above. Back
    2. Report of the UNSR on Freedom of Expression to the UN General Assembly (UNGA), A/65/284, at para 21 (2013) (accessible at: https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf). Back
    3. General Comment No. 34 above. Back
    4. High Court of South Africa in Pretoria, Case No. 25978/2017, (2019) (accessible at: http://www.saflii.org/za/cases/ZAGPPHC/2019/384.html). Back
    5. High Court of South Africa Case No. 25978/2017 at para.130 (accessible at: http://www.saflii.org/za/cases/ZAGPPHC/2019/384.html). Back
    6. Ibid at para 131. Back