The right to express our opinion it’s an important and fundamental right, so everyone could be able to express what she/he thinks, her/his opinion, and that could be protect by the single nation right and the international one.
Around the world everyone has or tent to protect her/his right to freedom of expression. This right include freedom to hold opinions and to receive and report information and ideas without interference by public authority and regardless of frontiers. The freedom of expression, stamp and pluralism of the media shall be respected.
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The use of these freedoms, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
For example the recent declarations of the founder of wikileaks, Julien Assange, caused a big sensation in European Governments and especially in the American secret services.
The various Governments have been trying to draw a line to the disclosure of private and confidential information relate to the Internet.
Freedom of expression is one of the most fundamental rights that individuals could enjoy.
It is important to the existence of democracy and the respect of human dignity.
It’s also one of the most critical and dangerous rights, because freedom of expression means the freedom to express one’s discontent with the present situation and the aspiration to change it.
We could see, it is one of the most susceptible rights, with governments, and even human rights groups, all over the world constantly trying to restrict it.
In China for example, lots of words are banned on the Internet.
For instance, if we try to type number “64” which contains the date of Tiananmen Square demonstration of 4th June 1989, asterisks will be shown instead of this number or a message will be displayed saying that “ the world is not legal/forbidden”.
Freedom of expression is essential for a democracy nation, to work and public participation in decision-making.
People cannot exercise their right to vote effectively or take part in public decision-making if they do not have free access to information and ideas, they have the right to know how Government work, the State’s decisions and when they’re really take part in a active way; at this point they are able to express their views liberally without any type of censure.
Freedom of expression is a basic element of democracy and for a responsible state.
The violation of this freedom may also affect the right to association and assembly even if they’re not for political scopes or they’re against a Government decision’s.
We could see the violation of this freedom in Journal, Tv program’s or in a simple Cultural Assembly, the censure in XX century it’s really dangerous, we rarely could know when there is a case of important censure.
Progress has been made in recent years in terms of securing respect for the right to freedom of expression.
Hard work has been made to realize this right through specially constructed regional mechanisms.
New opportunities are emerging for greater freedom of expression with the internet and worldwide satellite broadcasting. New threats are emerging too, for example with global media monopolies and pressures on independent media outlets.
The United States, probably like no other nation, has recognized the importance of freedom of expression to safeguard democracy and grow as a nation.
However, this does not mean there are no efforts to try to limit it.
Internet has often been the target of these efforts, as it provides practically everyone with the ability to communicate their ideas to wide audiences and escapes the ability of the state to control it.
The freedom of expression and the freedom of express opinions
The right to freedom of expression upholds the rights of all to express their views and opinions liberally.
It is essentially a right which should be promoted to the maximum extent possible given its essential role in democracy and public participation in political life.
There may be certain extreme forms of expression which need to be limited for the protection of other human rights.
Limiting freedom of expression in such situations is always a fine complementary act.
The right to look for information: receive and report information and ideas
Restrictions on individual journalists: The freedom to impart information can come under attack in a variety of ways and particularly impose on the freedom of the press.
Pressure on journalists poses a very significant threat.
Informal censorship refers to a variety of activities by public officials – ranging from telephone calls and threats to physical attacks – aimed to prevent or punish the publication of critical material.
The right of journalists to protect their sources is also important because with their notices they inform us, they try to know the true thing in every case and report us for our interest, they report to let the people know the right side of cases.
Journalists should not be asked to disclose the origin of their sources, except under certain conditions(it is necessary for a criminal investigation or the defense of a person accused of a criminal offence; they are ordered to do so by a court, after a full opportunity to present their case; necessary’ implies that the information cannot be obtained elsewhere, that it is of great importance and that the public interest in disclosure significantly outweighs the harm to freedom of expression from disclosure).
Privacy laws can obstruct investigative reporting designed at exposing corrupt and illegal practices.
Privacy laws, while important in protecting the private affairs of individuals, should be used without denying discussion of matters of public concern.
The media should be free to report on conflicts and public scrutiny in such situations is essential to controlling humanitarian and human rights abuses.
Exclusion of the media is a very severe restriction on freedom of expression and information in this regard and restrictions should only be placed where there are clear safety concerns.
Information should be impartial, but this is hard to achieve so it is subject often to political repression.
No freedom of press
Does exist the press freedom?
We really don’t know that the freedom of express it’s completely free from all forms of censure or any type of restriction.
The only thing that we know is that: there are restriction everywhere.
Restrictions can take the form of press laws which allow for government interference in the media, or which impose arbitrary restrictions on published content.
For example, in Italy the public television network RAI has been seriously politicized since its creation in 1954.
Now and until the major political changes of the end of the 1980s, Italian public television was controlled by the political party in power, the Christian Democrats. (Report of Ambeyi Ligabo expert on freedom of press, ONU).
All bodies with regulatory authority over the media, print or broadcast, should be fully independent of government.
The request of licenses applications should be open and transparent, with decisions being made on the basis of pre-established criteria in the interest of the public’s right to know.
In addition, the powers of broadcast regulatory bodies should be limited to matters relating to licensing and complaints.
Media monopolies are another way in which the right to receive information from a variety of sources is restricted.
State broadcasting monopolies do not serve the public interest but then in some smaller markets, a monopoly newspaper may be the only way to provide access to local news. Rules on monopolies need to be carefully studied to promote plurality of content, without providing the government with an opportunity to interfere in the media.
Other examples of “structural censorship” i.e. use of economic measures by governments to control information are government advertising, government control over printing, distribution networks, or newsprint and the selective use of taxes.
Access to information held by public authorities
The access to information held by public authorities is another aspect of the freedom of information debate.
International/regional human rights bodies have expressed the public’s right to know and urged governments’ to adopt legislation along the following lines:
the legislation should be guided by the principle of maximum disclosure;
government should be under an obligation to publish key information;
public bodies should actively promote open government;
exceptions should be clear and specific and subject to strict ‘harm’ and ‘public interest’ tests;
individuals should have the right to appeal against a refusal to disclose information to an independent administrative body, which operates in a fair, timely and low-cost manner;
the legislation should provide protection for sources who release information on wrongdoing.
New technologies: Internet, satellite and digital broadcasting
New technologies offer unprecedented opportunities to promote freedom of expression and information.
New technologies are certainly more free than any other kind of media like journals, books or tv programs (because tv, is already an old media, we could not consider that a new technology).
Action by the authorities to limit the spread of harmful or illegal content through the use of these technologies should be carefully designed to guarantee that any measures taken do not inhibit the enormous positive potential of these technologies.
The application of rules designed for other media, such as the print or broadcast sectors, may not be appropriate for the internet.
Obviously, limitations on such technologies will be a fine balancing act between defending the freedom of expression and information and ensuring protection from abuses e.g. spread of child pornography.
Freedom of Information
FOI laws reflect the fundamental premise that all information held by governments and governmental institutions is in principle public and may only be withheld if there are legitimate reasons, such as privacy or security, for not disclosing it.
Over the past 10 years, the right to FOI has been recognized by an increasing number of countries, including developing ones, through the of laws regarding the freedom of Information. In 1990 only 13 countries had adopted national right to information laws, whereas there are currently more than 70 such laws adopted across the world with a further 20-30 of them under consideration in other countries.
Berlin based Transparency International in their recent survey of 159 nations have placed Sweden at number five.The earliest reference to the Right to Information is found in Sweden, where in 1776, a convention on granting Right to Information to all citizens was passed.
After the formation of United Nations, the US General Assembly passed the famous resolution in 1946.
Article 19 of International Covenant on Civil and Political Rights 1966, to which India is a signatory also declared freedom of Information to all its citizens.
The Right to Information has already come into force in 56 countries in the world.
These include North America, most of Europe, South Africa, India, Australia and New Zealand. In over 25 Countries efforts are pending to enact the Right to Information law. They are most of South American and East African Countries, Southeast Asian Region and part of Russian federation.
In USA, the right of information Act of 1966 was amended in 1974 after the Watergate.
This proves that the Right to Information is a global phenomenon.
Most of the democratic countries have Right to Information. It can also be correlated to development. Recently, China admitted openly that absence of right to Information was affecting their exports since the manufacturers in China were not aware of the export potential of their products.
The World’s First Freedom
of Information Act:
1776: first Act in Sweden, was the first freedom act of information legislation in the world.
This legislation is one of the four fundamental laws that figure Sweden as a nation. This legislation guarantees Swedish citizens the right to publish written text without the government’s interference, regulation and censorship on the content.
With this act is guaranteed to individuals the freedom to communicate information by providing legal protection to ensure the anonymity of an individual who has provided information to the press (The Swedish Parliament, 2010).
This is guaranteed the right to publish a newspaper without a pre-controlled by the government agency for example the freedom of the press or freedoms in general in broadcast . The Freedom of the Press Act are important to safeguard freedom of speech in printed form but also in oral form.
Another principle which is in the Freedom of the Press Act is the freedom to share information. According to this principle, everyone in Sweden is free to communicate to the press information, this is considered important and necessary to make public. The publisher of the material is not allowed to reveal the source if the person in question wishes to remain anonymous. It is a punishable offence for anyone, for example the head of a public agency when try to find the person who have wrote the special “bad” news.
Freedom press act gives all individuals a fundamental right to express their opinions and distribute them without previous censorship. The right of free access to official documents is also enshrined in the Freedom of the Press Act. This means that anyone is free to contact a public authority or agency in Sweden and request access to an official document, such as a decision it has made. An individual who makes such a request does not need to give his name or specify the purpose of his request, there is the anonymous.
235 years ago , Sweden passed the first freedom of information law in the world, principally sponsored by a Finnish clergyman Anders Chydenius .
Enlightment thinker and politician Anders Chydenius (1729-1803) was the “first actor” of this act, he wanted to abolished political censorship and provided public with an access to government documents (2 December 1766).
Anders Chydenius ,had been inspired by the humanist Confucian philosophy (Confucius was born in 551 BC)…and the fact that the Chinese emperors were expected to:
“Admit their own imperfection as a proof for their love of the truth and in fear of ignorance and darkness.”…
“When a prince’s personal conduct is correct, his government is effective without the issuing of orders. If his personal conduct is not correct, he may issue orders, but they will not be followed.” …
“Let his words be sincere and truthful and his actions honorable and careful.”
The origins of directness are not in the West, but in the East.
The Finn Anders Chydenius was the first “free-thinker” that made an Act early in 1776, he was also one of the most notable politicians of eighteenth century Sweden-Finland. He is most of all remembered as an outspoken defender of freedom of trade and industry, the “Adam Smith of the North”.
Chydenius taught that freedom of trade were a consequence of his general ideology of freedom, democracy, equality and a respect for human rights were the only way towards progress and happiness for the whole of society.
Economics exists for the benefit of “the little people” – and not the other way round.
Soon he moved on social questions, affairs, he was a “full man” .
Chydenius participated in a active way in the Diet, after he published lots of articles criticizing the majority way of Economic of mercantilism, based upon regulation, limits and monopolies. The most famous of these articles, which caused a great stir, was ‘The National Gain’.
Concrete results of the important man activities at the Diet were for example a stricter control of the national economy and the extension of the freedom of the press, which he considered himself to be one of his greatest collection.
Chydenius strongly championed the rights of the servant class, and called for the creation of an open employment market, then he introduced a bill, at the suggestion of King Gustavus III, by which foreigners were also guaranteed limited rights to the practice of their own religion. Chydenius died in 1803.
Freedom of press, Italy like in 2009, 49th position as Burkina Faso
The 9th classification of the organization defending journalists’ rights has been released, Europe is realistic about the end of dictatorships.
One more year as a partially free country.
In the yearly classification of Reporters sans Frontieres, Italy is in 49th position like Burkina Faso and slightly higher than El Salvador.
The report published today states that: “No progress has been made in the countries where RsF found problems. Among these countries we point out France and Italy, where last year’s events, the violations made to the safeguard of journalists’ sources, the continuous concentration of mass media ownership, the defiance and impatience expressed by Government members with regard to journalists and their work, the Judicial summoning, have confirmed their inability to reverse this trend.
It is worrying to see how lots of countries belonging to the European Union are going down in the classification, declared Jean Francois Julliard, general secretary of RsF.
If there is no cooperation, the European Union risks losing its position as a worldwide leader in Human Rights respect.
Should this happen, how could the EU be convincing when it asks authoritarian regimes to improve the respect of Human Rights?
There is an urgent need for European Countries to recover an exemplary behaviour.
Northern Europe is still ranking on top_ Finland, Iceland, Holland, Norway, Sweden and Switzerland are in first position.
They are six nations where the respect for journalists and for the work of mass media in general is an untouchable value, as well as the necessity to protect them from judicial abuse.
Ten countries where being journalist is dangerous_ Until 2009, in the 8th previous editions of the classification, the last three positions where always taken by Turkmenistan, Northern Korea and Eritrea.
Last Year, the “group of worst countries” included ten countries, characterized by mass media persecution and by a total lack of news and information: in addition to the above mentioned countries we have Laos, Rwanda, Yemen, China, Sudan, Syria, Burma and Iran.
In these countries journalists are often kidnapped, as in the case of Sthephane Taponier and Herve Ghesquiere, journalists of the French TV who were held hostage in Afghanistan for one year.
Economic growth does not mean freedom of press_ The so-called “BRIC” countries (Brazil, Russia, India and China) have had a similar phase of economic development but there are considerable differences with regard to freedom of press for 2010.
Due to positive law modification, Brazil (58°) went up by 12 positions compared with 2009, while India (122°) dropped by 17 positions.
Russia ranks very low on 140th position.
The case of Anna Politkovskaya, the Russian journalist murdered on October 7, 2006 in front of her house which had a big echo in Europe, is no isolated case.
On January 19, 2009 Anastasia Baburova a 25 years old journalist who wrote in the same newspaper as A. Politkovskaya was shot in the town centre of Moscow.
Finally China which, as shown by the reactions to the Nobel Prize given to Liu Xiabo, condemned to 11 years of jail, continues to censor and imprison dissidents.
The European Federation of Journalists (EFJ) is the Europe organisation of the International Federation of Journalists.
The European Federation of Journalists , representing about 280.000 journalists in 30 paesi, is the largest organisation in Europe.
Accordig with a resolution of the meeting in Prague in 2003, the EFJ has the right to investigate of the media situation’s in Italy.
The result of this effort is: “Crisis in Italian Media: How Poor Politics and Flawed Legislation Put Journalism Under Pressure” ,from the title doesn’t not present an happy situation.
The conclusion are resumed in eight point, the first one is:
“It is impossible not to conclude that the media crisis in Italy is profound and serious. There is a deeply flawed system of management, a lack of public awareness, an element of political paralysis, and a deep sense of professional unease within Italian journalism about the future of media.”
About the situation of Journalist in Italy, a recent sentence in front of the CEDU, about a journalist and the problem with is work.
The applicant is an Italian national who lives in Naples. He is a journalist and director of the weekly magazine Oggi. On 25 January 1995 Oggi published an article by the applicant reporting on an interview with Fabio Gallo. Mr Gallo, a dancer, choreographer and principal of a dance academy in Cosenza, had been accused in 1993 of raping a number of pupils attending his establishment. The article spoke of Mr Gallo’s fears that the accusations against him were the consequence of his professional activities and of his opposition to a presumed “business committee” made up of the most powerful men in Cosenza. Mr Gallo alleged that the forms he had filled in with a view to obtaining regional subsidies for his dance academy had been stolen. He had lodged a complaint about the theft, but the head of the Cosenza prosecution service at the time, Francesco Serafini – the brother-in-law of the manager of a rival dance academy which had received the subsidies sought by Mr Gallo, had decided to take no further action. The following issue of Oggi contained a new article setting out Mr Serafini’s version of the events and refuting Mr Gallo’s.
The principal public prosecutor lodged a complaint against the applicant and Mr Gallo alleging defamation. They were charged with defamation through the medium of the press, aggravated by the fact that they had attributed a specific act to the victim and had insulted the State legal service. On 12 November 2001 Milan Court of Appeal found Mr Ormanni and Mr Gallo guilty as charged and ordered them to pay the principal public prosecutor an interim amount in compensation equivalent to EUR 12,911 and sentenced the applicant to pay a fine of EUR 1,032. Appeals to the Court of Cassation by Mr Ormanni and Mr Gallo were declared inadmissible.
The applicant complained, under Article 10 of the Convention, that his conviction amounted to an unjustified interference with his right to freedom of expression.
The Court considered that the applicant’s conviction amounted to interference with his right to freedom of expression, that the interference was provided for in Article 595 of the Criminal Code and that it had the legitimate aim of protecting the reputation or rights of others, more particularly of the man who was the head of the prosecution service at the time.
As to whether the interference was “necessary in a democratic society”, the Court considered that the applicant had discharged his obligation to verify that the factual basis of his article was correct. It noted that the article was presented as an account of an interview with Mr Gallo in which the latter used the pages of Oggi to set out his arguments, which were by their very nature subjective, in an attempt to persuade the readers of his innocence.
Read as a whole, the article presented Mr Gallo’s fears of the existence of a “business committee”, made up of the most powerful men in Cosenza, who sought to do him harm. It was not unreasonable to take the view that the applicant had endorsed Mr Gallo’s allegations, at least in part, and had not formally distanced himself from them. However, he had not expressed any value judgment concerning the human or professional qualities of Principal Public Prosecutor Serafini, whose name had been mentioned only once in the article, without any suggestion that he was responsible for the bringing of proceedings against Mr Gallo or that he was a member of the “business committee” which had allegedly sought to harm him.
In those circumstances, the Court considered that, although the applicant’s article contained a degree of provocation, it could not be regarded as a gratuitous personal attack on Mr Serafini. Moreover, Mr Gallo’s remarks were critical of the way justice was administered in Cosenza and possible links between judicial institutions, politicians and private interests; they therefore covered a subject of general interest about which it was legitimate for the press to inform the public.
The Court also attached importance to the fact that Oggi had wasted no time in giving Mr Serafini the possibility of setting out his version of the events and that the public had thus had the opportunity to compare the two conflicting accounts of the facts.
Having regard to the circumstances of the case, the Court considered that the means employed had been disproportionate to the aim pursued and concluded that there had been a violation of Article 10.
Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant 11,742 euros (EUR) for pecuniary damage and EUR 10,000 for costs and expenses.
The article 10 CEDU, freedom of expression and the article 9, freedom of thinking what we want, both concern about the same freedom but the first is in a dynamic sense and the second in a static way.
Why this division?
In Italy our Constitutional article 21 represent both CEDU article.
The article 10 (CEDU) is in contrast with our article 21 (Constitutional article), because the article 10 is subordinated by few conditions and restrictions, for example the safeguard of a State and other limits that they are more than the simple costume of article 21 of our Constitution .
In this case the protagonist an Italian citizen, especially and Italian Journalist of a Day-Journal was condemned, in accord with the article 595 penal procedure, to inform people about a case of the Cosenza’s procure.
In Italy, a part of the article 21, and the limits o custom, there are series of limits in the penal procedure codex.
The law protects judicial property, the honour of the victim.
The protagonist, so was condemned in a FIRST process in Milan, in a second one and also at the Cassazione’s court, because he defames with his article the judje in the case in Cosenza.
Ormanni only wrote the facts that the dancer said him, but for the Italian court he made a terrible defame and he had to serve a penal penalty.
Against this definitive sentence, Ormanni appeals to the CEDU.
The CEDU court verified the relationship between the Italian ordainment and the facts to sanction ( principle of proportionality).
The CEDU court has no doubt to the facts, but of the reconstruction of the dancer.
The penal penalty of Ormanni is more strong than the facts.
The CEDU court:
There is a principle called “margine di apprezzamento” that any state has the faculty to exercise, and Italy has all the faculty to has an article like 595 of procedure penal to limit freedom of expression;
It’s true that state have the “margine of apprezzamento” but the condemn is really too severe, exaggerate.
The CEDU court recognize the honour lesion, but the sanction it’s too violent, this is not a responsibility of Ormanni, he maybe had a little importance to verified facts.
May 3, Press Freedom Day
Eighteen years ago the General Assembly of the United Nations, following the UNESCO recommendation, decided that the 3rd of May of every year would be devoted to the celebration of the worldwide day of press freedom.
Also our country shared this decision as a rightful tribute of respect and acknowledgement to all those who worked and are still working, often with great sacrifice, to perform their job which is basically aimed at disclosing information and making the truth known without subordinations.
Freedom of press is one of the main guarantees of a democratic country towards its own citizens and it is the most credible expression of a civil society which intends to safeguard the freedom of opinion without any influence.
However, celebrating this day makes us think about the autonomy of the people who work in this sensitive sector and about their responsibility which are basic conditions to prevent opinions, judgments, proposals and evaluations from being subjected to limits and objections other than the safeguard of pluralism of thought and the respect of conscience.
No freedom of information can exist without the freedom to a critical orientation regarding the events and without the possibility of fulfilling such an important task which must be performed in the exclusive interest of truth.
However this can not only be limited to a set of rules which are necessary however to assure the diversity of political, civil, religious and cultural roots.
All this is also necessary for the scrupulous deontology and professional character of the persons who work in this basic field of civil life.
Objectivity and openness to diversity of the citizens’ opinions , in the respect of guaranteed freedoms, are fundamental principles which must inspire free and independent information.
Apart from the celebration aspect, all operators and institutions must renew their commitment
to consider the Worldwide day of press freedom as a significant step towards the civilization of each people.
Privacy and freedom of information, the case Toumela and others v. Finland
Flinkkila and others v. Finland; Jokitaipale and others v. Finland; Iltalehti and Karhuvaara v. Finland; Soila v. Finland; Tuomela and others v. Finland
The applicants are: four Finnish nationals in the first case (the editors-in-chief of the nationwide magazine Seura and the editor-in-chief and a journalist of the nationwide magazine Nykyposti); three Finnish nationals and the Finnish Publishing company Aller Julkaisut Oy in the second case (the editor-in-chief and two journalists in the nationwide 7 paivaa magazine); one Finnish national and the Finnish Publishing company Kustannusosakeyhtio Iltalehti in the third case (the editor-in-chief of the Iltalehti nationwide newspaper); one Finnish national in the fourth case (a journalist on the nationwide magazine 7 paivaa); and two Finnish nationals and the Finnish Publishing company Yhtyneet Kuvalehdet Oy in the fifth case (a journalist and the editor-in-chief publishing in the nationwide magazine Hymy).
All applicants were involved in the publishing, between 7 January 1997 and 13 March 1997, of a total of nine articles in the above-mentioned Finnish newspapers concerning A., the National Conciliator at the time, and B., his female partner. The articles focused primarily on the private and professional consequences for A. of an incident of 4 December 1996. During that incident A. and B. entered A.’s home late at night while A.’s wife was there and, as a result of an ensuing fight, B. was sentenced to a fine and A. was sentenced to a conditional term in prison. All articles mentioned B. by name and gave separately other details about her, including her age, name of her workplace, her family relationships and her relationship with A., and her picture.
In all cases, B.’s identity was previously revealed in Finnish magazine publications dated at least as early as 7 January 1997.
In the spring of 1997 A. and B. asked that criminal investigation be conducted in respect of the journalists for having written about the 4 December 1996 incident and the surrounding circumstances. Between November 1999 and November 2001, criminal charges were brought against all applicants following which they were sentenced by the domestic courts to pay fines and damages for invasion of B.’s private life. The courts found in particular that since B. was not a public figure, the fact alone that she happened to be the girl-friend of a well-known person in society was not sufficient to justify revealing her identity to the public. In addition, the fact that her identity had been revealed previously in the media did not justify the subsequent invasions of her private life. The courts further held that even the mere dissemination of information about the private life of someone was sufficient to cause them damage or suffering. Therefore, the absence of intent on the part of the applicants to hurt B. was irrelevant. The courts thus concluded that the applicants had had no right to reveal facts relating to B.’s private life or to publish her picture.
All applicants complained under Article 10 (freedom of expression and information) about the high amounts they had to pay as damages to B. The applicants in all cases with the exception of Iltalehti and Karhuvaara complained also under Article 7 that it had not been clear from the Criminal Code provision applied that their conduct would have been punishable as the provision had not defined the scope of private life. The applicants in the third and fourth cases also complained under Article 6 § 1 about the lack of reasoning in the domestic courts judgments with which they were criminally sentenced.
Having examined in earlier case law the domestic Criminal Code provision in question, the Court had found its contents quite clear: the spreading of information, an insinuation or an image depicting the private life of another person, which was conducive to causing suffering, qualified as invasion of privacy. In addition, even the exception stipulated in that provision – concerning persons in a public office or function, in professional life, in a political activity or in another comparable activity – was equally clearly worded.
Even though there had been no precise definition of private life in the law, if the applicants had had any doubts about the remit of that term, they should have either sought advice about its content or refrained from disclosing B.’s identity. In addition, the applicants were professional journalists and therefore could not claim not to have known the boundaries of the said provision since the Finnish Guidelines for Journalists and the practice of the Council for Mass Media, albeit not binding, provided even stricter rules than the Criminal Code.
However, there had been no evidence, or indeed any allegation, of factual misrepresentation or bad faith on the part of the applicants. Nor had there been any suggestion that they had obtained information about B. by illicit means. While it had been clear that B. had not been a public figure, she had been involved in an incident which had caused public disturbance outside of the family home of A., a well-known public figure with whom she had been in a close relationship. Therefore, B. could have reasonably been taken to have entered the public domain.
In addition, the disclosure of B.’s identity had been of clear public interest in view of A.’s conduct and his ability to continue in his post as a high-level public servant. The incident of 4 December 1996 had been widely publicised in the media, including in a programme broadcast nationwide on prime-time television as early as January 1997. Thus, the articles in question had not disclosed B.’s identity in this context for the first time.
Finally, in view of the heavy financial sanctions imposed on the applicants, the Court noted that B. had already been paid a significant sum for damages by the television company for having exposed, in January 1997, her private life to the general public. Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. And, last but not least, the Court noted that similar damages had been ordered to be paid to her also in respect of other articles published in other magazines by the other applicants listed above, which all stemmed from the same facts.
Accordingly, in view of the severe consequences for the applicants against the circumstances of the cases, the Court held that there had been a violation of Article 10 in all five cases: by six to one votes in the case of Jokitaipale and Others, and unanimously in the other four cases.
The Court held that there had been no violation of Articles 6 § 1 and 7.
Under Article 41 (just satisfaction), the Court held that Finland was to pay the applicants sums ranging between 12,000 euros (EUR) and EUR 39,000 for pecuniary damage, between EUR 2,000 and EUR 5,000 for non-pecuniary damage, and between EUR 3,000 and 5,000 in respect of costs and expenses.
Comments About the sentence
In the sentence Tuomela c. Finland, the European Court of Human rights (infra: CEDU), gives interesting advices about balancing between privacy and freedom of expression.
The sentence comes from the appeal of a journalist, an editor and a publisher, condemned for violating privacy; they published some news about a fight between a public figure (A), his lover (B) and his wife, and the following case too.
The CEDU declares that this sentence violates the Art.10 and that (B) surely is a private citizen who is implicated in a penal case; this means that she can’t stand a restriction of her privacy protection.
Anyway, in spite of her status, being involved in a fact that was also about a public figure and being subordinate to penal proceeding, means that the Court considers (B) as entered in the “public domain”.
The revelation of her identity was related with an issue of public interest, which had something to do with the behaviour of (A.)and with his ability in exercise his duties.
The freedom of expression is one of the most fundamental right of a democratic society and one of most important point to the individual realisation.
The guarantee of art. 10, § 2, of the European Convention of Human rights, is applied not only for information in general and opinions , that are approved with favour or considered offensive or inoffensive, but also that are against the public opinion.
There are exigencies , that are imposed from the pluralism and the global tolerance, without them it can’t be a really democratic society.
Freedom of expression is submit to exceptions of the art.10, § 2, however they must be play in a strictly way.
In particular, the necessity of a limitative measure in a democratic society implicate the subsistence of a social imperative exigency.
Every State has a margin of a tolerance to evaluate the subsistence of this exigency, but is in any case a subject to a supervision in a Europe centre.
If in any case the journalist function does not surpass those limits- with a particular reference to the reputation and at any other rights, at the prevention of private notice’s divulgation- anyway has the right to provide- with a way that is conformed to its responsibility- notices and opinions about public interest’s fact.
And if mass-media must be informed people about any situation, people has the right to receive them.
Rights critical Limits’ are less constricted in public people’s relation, that they are inevitably and consciously are in front of the mass-media control.
Anyway, the freedom of expression must be balanced of a guardianship with the private life, in accord to the art.8 of the European Convection.
Those are important points of the sentence of the European Court of Human Rights, April the 6, in the case Toumela vs. Finland, related with the condemned about a journalist’s privacy violation, a Journal Director and an Editor to have published notices about a fight between a Finland Justice of the Pace (A) and his lover (B) and his wife (C).
This case (in the two old ones they were condemned in a criminal trial) and the repercussion about the institutional activity of A. And details about the private life of B like the Name, the Real Age, some photos and her travel, familiar relations and information about her relationship with A.
The sentence about the privacy violation of victims were funded on the matter that B. Who is not a public character, did not accept the publication of her private information.
Journalists and the Editor suggested the CEDU court, to appeal their self-defence at the articles 6 (loyal process), 7(legal principle in a penal sentence),10(freedom of expression) of the Convection about the man right’s.
The CEDU court, declared the unfounded of the first two censures, the first one because there is not the obligation to motivation of judicial decisions,
the consequences of sanctions the violation of which could in no way be considered unpredictable, a fortiori by professional journalists, which the applicants – the Court focuses on the third, considering whether the prosecution of journalists constitutes a limitation necessary in a democratic society, freedom of expression, stating first that the freedom of the press and criticism of public figures have a wider operating margin than at the private citizen, as the former inevitably and knowingly expose their behaviour to control opinion public and the media, then having to see partially eased their expectation of privacy.
This does not escape from having the right balance between information and the right to privacy under Article. 8 of the Convention since it must also consider the possible connection of the fact narrated in court proceedings, the advertising, however, does not exempt the press from its right and duty to inform the public about news of public importance arose at that meeting, while respecting the presumption of innocence and the public for the proper exercise of judicial functions.
Accordingly, the Court considers that, in this case, the articles published when the case against A. and B. was already at an advanced stage, have merely described (as a representation whose authenticity was not disputed) the dispute exchanged between A., his wife and the lover, the relationship between A. and B. and certain information relating to it.
Although B. was not a public figure but a private citizen who, by the mere fact of being charged at the time, not have been regarded as deprived of the right to privacy, the Court can consider that, because of its link with the holder of an important constitutional position, B. had now entered the realm of “public domain”, why, then, his right to privacy could be a major limitation.
In view of these considerations and the severity of the sanctions imposed by the Court considers the penalty imposed on the applicants disproportionately, such as to unduly restrict freedom of expression, in ways not necessary in a democratic society.
In the establishment, in relation to the matter and given the social significance of the news, the prevalence of press freedom on the right to reputation and privacy of the subjects represented, the Court shall conform to a consolidated address in its case, that of balancing from time to time the right to information with the conflicting interests involved – even the privacy of the public entity, if species represented outside the exercise of its functions, or even, at least on the court record, the presumption of innocence, the confidentiality of investigations and impartial exercise of jurisdiction, however, has recognized the real purpose of determining value the information sought by the journalist.
But the innovative aspect of the ruling lies in Tuomela considered related – for the balance between information and privacy – a private citizen as a B. and a public figure, or at least entered a sphere into the public domain because of its relationship with A., of his participation in the fight with his wife (and its follow-judicial), and the consequences of this episode on the exercise by A. Part of the statutory mandate. And while the Court seems to allow a limitation on the privacy of B. only in relation to aspects of his private life such as to affect the position of A. and criminal proceedings in which both were involved, the other implicitly outlines a tertium genus between public figures and private individual, which will be taken by individuals who, because of reports of particular importance with celebrities, that are attracted to the sphere of “public domain”.
In this perspective, the legitimacy of the dissemination of personal data relating to these subjects would then be assessed primarily on the basis of the proportion and function of information with regard to the purpose pursued by the journalist, to represent with accuracy and completeness of the facts of general interest. And that, according to a poll likely to be more stringent than that adopted in Hanover as King concerning a public figure “par excellence”, which the Court defined the same subject, it needs a more restrictive interpretation of the limits of press freedom.
Therefore, only by restricting the category of personal data subject to publication, you can really ensure that the restriction of privacy (and sometimes in dignity) imposed on persons who, however, is not just tout court classified as public figures, both functional purposes informative and does not, however, to satisfy public curiosity concerning all aspects of private life of others.
The Global Openness Movement:
245 Years after the First Freedom
of Information Law, Access to
Government Information Now
Seen as a Human Right
During the 240th anniversary year of the first freedom of information law ever put into practice, in 2006, Chydenius’s principle of publicity for government records has now won legal recognition as a fundamental human right.
On 11 October 2006, the Inter-American Court of Human Rights became the first international tribunal to hold that there is a fundamental human right to access government information.
In the case of Claude Reyes et. al. vs. Chile, the Inter-American Court confirmed the right of the three environmental activists to seek information from the Chilean government about a controversial logging project.
According to the Court’s ruling, by failing to provide access to the requested information, Chile had violated Article 14 of the American Convention on Human Rights, which guarantees freedom of thought and expression.
The Court held that Article 14 contains an implied right of general access to government-held information, and States must adopt legal provisions to make sure the right is given full effect.
The Court specifically ordered Chile to provide the requested information about the Rio Condor logging project (which involved environmentally sensitive woodlands in the sub-arctic region of Tierra del Fuego and a multinational timber company that had gained government subsidies), or to issue a reasoned decision for hiding the data, as well as to adopt adequate administrative procedures to protect the right in the future and to train public officials to uphold the public’s right to information.
International advocates of transparency in governance and the right-to-know have agreed with the precedent-setting court decision.
For example, according to Helen Darbishire, Executive Director of Access Info Europe which is attempting to raise openness standards especially in Western Europe, the decision will be precious for activists who need government information to defend other human rights, protect the environment, and fight corruption.
As Darbishire suggests, the new decision could provide the basis for the European Court of Human Rights to reconsider its earlier rulings against information access as a human right.
In a series of cases, from Leander v. Sweden in 1987 to Guerra v. Italy in 1998, the European Court refused to find such a right in the European Convention on Human Rights, even though that Convention’s Article 10 directly reflects both the Article 14 of the American Convention (the
basis for the Inter-American Court’s new ruling) and the original Article 19 of the Universal Declaration of Human Rights.
The Fundamentals of Freedom of Information
Freedom of information statutes are not stand-alone solutions to government secrecy.
In the U.S. case, for example, reformers had to begin with essential requirements to create, maintain and preserve government records, and to regulate agency information systems and archives.
The delegations of reformers who visit the U.S. are always surprised to see the first section of
the U.S. FOI law, the section that requires government agencies to publish in the Federal Register descriptions of their organization, functions, procedures, forms, important rules, policies and regulations.
The U.S. Privacy Act requires every federal agency to publish in the Federal Register detailed descriptions of every database and records system containing records that can be taken back by personal identifiers, the Pentagon report alone fills two volumes of closely-spaced type. In Sweden, the essential openness requirement goes even more: agencies list in public registers
almost every document written or received in the course of official activities, with very few exceptions, so that requesters know exactly what they’re asking for, and also the agency knows exactly what it has.
The process of bureaucratic expansion also created an interactive effect, so that at the same time that government was making its own record-keeping more efficient for internal aims, it also faced increasing public demand for access to those records as well as for participation in creating any new regulations.
The U.S. FOIA grew on a substantial bureaucratic foundation, as one more of a wide variety of accountability and efficiency mechanisms, some of which, like the necessity to maintain
formal records systems documenting the activities of government, are probably a prerequisite to any kind of successful FOI process.
The obligation to publish, and a kind of essential transparency, is fundamental before citizens can make reasonable and effective requests for information.
This openness also has to extend to each of the major functions of government, executive, legislative, and judicial.
The ideal openness regime, of course, would have the government publishing so much that the formal request for specific information (and the resulting administrative and legal process) would become the exception rather than the rule.
Until that time, openness advocates established five fundamental points about freedom of Information laws:
Such statutes begin with the supposition of openness.
In other words, the state does not own the information; it belongs to the citizens.
Any exceptions to the supposition must be as narrow as possible and written in statute, not subject to bureaucratic variation and the change of administrations.
Any exceptions to release information must be based on identifiable damage to specific state interests, not general categories like “national security” or “foreign relations.”
Even where there is identifiable damage, the harm must be more critical than the public interest served by releasing the information, such as the general public interest in open and accountable government, and the specific public interest in exposing waste, fraud, abuse, criminal activity, and so forth.
An information commissioner, an ombudsperson or other authority that is independent of the original bureaucracy holding the information should resolve any dispute over access.
The Next Frontier
The European Union still does not have its own Freedom of Information statute, as a result it has difficulties in its relationship with the International Institutions.
And so are the other international institutions that exercise more and more power over the
daily lives of citizens and the policy decisions of nations.
Indeed, one of the greatest challenges to democratic governance in the globalized world lies in the growing gap, the “democratic deficit”, between the power of the international institutions to affect human lives throughout the planet, and the power of the people so affected to hold those institutions accountable, who much less participate in the institutions’ decisions.
This issue is rapidly becoming the next frontier of the openness debate.
The growth of the international institutions, especially since the end of the Cold War, is particularly remarkable.
The World Bank has more than doubled its annual commitments since 1979 and is now present more than 100 countries, including the previously off-limits territory of the former
The multilateral development banks have emulated the World Bank in the growth of their own regional portfolios.
The World Trade Organization replaced the earlier General Agreement on Tariffs and Trade in 1994 with a more restrictive set of rules and obligatory dispute resolution procedures.
The end of the fixed exchange rate system in the 1970s and the debt crisis of the 1980s changed the International Monetary Fund from the world’s exchange rate fixer into a means
of development assistance and into an arbiter who decides which countries will receive international capitals or not.
After 1991, the North Atlantic Treaty Organization expanded to take in the former Warsaw Pact countries of East and Central Europe, and now has soldiers on the ground in Afghanistan.
But the governance structures of these international institutions have not changed.
Discussion of the resulting “democratic deficit” is no longer limited to the protest movement that gave the place names “Seattle” and “Genoa” significance both as generic anti-globalization reaction and as a more complicated challenge to the legitimacy of international institutions.
The policy and scholarly literature is exploding with attempts to analyze the problem, but at the origin of the issue is the genealogy of the financial/trade institutions (IFTIs) and the inter- governmental organizations (IGOs).
The first ones descend directly from central banks, which even in the most democratic countries tend to be the least directly accountable governance institutions; and the second ones originate from a wide alliance of nations, with concomitant governance processes that trend towards the bottom.
In both cases, diplomatic confidentiality served as the norm for communications among nations that established these institutions; and such norms, although somewhat eroded, continue to be applied today.
Freedom of expression
I would like end in the same in the same way that I’ve introduced the topic, even if less significant than the Article 19 promulgated by the United Nations, the Article 11 of European Union, that affirm at the same time freedom of information, speech and press.
“ Freedom of expression and information
1. Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. Media freedom and pluralism are respected.”
Freedom of information is a fundamental principle.
Giorgio Napolitano, in a Europe assembly, put the freedom of the press at the top of the culture and political system of the Europe continent: “We must trust in the public opinion and pluralism of information, “said Napolitano.
“There is no doubt about the importance of those fundamental principles relating to the information in our countries”.
Taking up a point in this direction of German President Horst Koeler to exploit the historic heritage of culture, democracy and freedom that is exactly Europe’s president says quote, that the continent must surely appreciate “The reservoir of wisdom that there are in our people and our public opinion. ” “Which – he adds – is the trust in our people and in our public opinion to the liberal and democratic principles upon which the European Constitution, including and not least the principle of freedom and pluralism.”
“We cannot have doubts – Napolitano continues – on the importance of fundamental principles that must preside over the activity, however, the information in the European Union.
With regard to national circumstances on the application of these principles, but we cannot enter into the merits.”
Book: Freedom of Information Act- Christopher L. Henry
Book: Freedom of speech: rights and liberties under the law – Kenneth Ira Kersch
Book: Freedom of speech: Christin Ditchfield
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