EIJK gibt PERSPEKTIVE

Anerkannte Wissenschafter, Praktiker und das EIJK-Team werden in der Medienkolumne „Perspective“ in regelmäßigen Abständen über relevante Entwicklungen, Hintergründe, Zeitgeist und Diskurse reflektieren. Die Kolumne soll den Wissens- und Meinungstransfer zwischen Wissenschaft und Praxis unterstützen und dazu beitragen, diese zwei zu oft getrennt agierenden Welten zu vernetzen. Inhaltliche Schwerpunkte werden sein: Berufsrollen von Medienmachern und Journalisten, Medienrecht, Ethik, Globalisierung/Lokalisierung, Digitalisierung, journalistisches Handwerk, Medienmanagement, massenmediale Inhalte. – Wir freuen uns über ihr Interesse.

 

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Failed Reset of Greece´ Public Service Broadcasting

Predecessor of shut-down ERT lacks to be “ Greek BBC”

by Martin Hoffmann, April 2015

Martin Hoffmann, Ph.D.-Student

Alexis Tsipras, in January 2015 elected as prime minister of Greece, is perhaps the most prominent victim of censorship at this time. In September 2014 Greece´  Public Service Broadcaster NERIT refused to broadcast an important political speech by then opposition-leader Tsipras − after political interference by the Samaras-Government. This censorship is the heaviest proof that the implementation of NERIT (Nea Elliniki Radiofonia, Internet kai Tileorasi) in May 2014 hasn´t been the milestone to enter a new era of press freedom and that it is unlikely to become a new BBC, like Samaras-Government proclaimed before. Instead, it has become a Public Service Broadcaster (PSB) famous for political interference. NERIT replaced the 1938 founded ERT, which was suddenly closed down in June 2013 due to controversial allegations of mismanagement, overstaffing and nepotism. The shutdown of ERT – first time an EU-Government ever closed a Public Service Broadcaster – caused wide protests in Greece and Europe. Citizens, journalists and NGOs feared a less independent broadcaster to follow on ERT (and the loss of thousands of jobs in the announced, leaner broadcaster to follow). It seems their protests were quite reasonable – a closer look on NERIT shows diverse forms of political interventions, benefiting of non-functional structures of the Greek PSB and especially its control boards.

The censorship of the Tsipras-speech at the Thessaloniki International Fair on September 13th – containing his program of government after a potential takeover of power – was the peak in a row of political interferences. Just two days before NERITs President Antonis Makrydimitris and Vice-President Rodolfos Moronis had resigned from their posts, stating NERIT would never become an independent broadcaster. They had run the PSB just for four months. A few days later famous novelist Christos Chomenides resigned from his seat as one of seven members of the supervisory board of NERIT. He explained his resignation with “direct government intervention” on the named speech of the opposition leader.

The Tsipras-scandal draw attention on two issues: The announced increase of independence after closing down ERT is quite doubtable. Putting it in a bigger picture; the case demonstrates one mayor problem all European Public Service Broadcasters deal with: Their degree of independence depends on politicians, mainly due to following three reasons.

  • Politicians should guarantee and defend the PSB´s independence by participating in the control organs or selecting (or confirming) the members of the supervisory boards.
  • Politicians are the ones who interfere (or not) directly in the programming of the PSB. The probability that they do so depends on the anticipated success of the action, the probability of sanctions and the given journalistic and political culture of state and media system.
  • And politicians decide about the degree of legal independence from the government, parties and state institutions by their legislative work as well as about the funding of the broadcaster.

These interventions are basically possible in every European PSB, but more likely to happen in a media system like in Greece. There the intervention was facilitated by:

(1.) Ineffective Control Structure. An accessible formal control structure combined with limited competencies turn supervisory boards into a widely ineffective instrument. Looking at the recent case, the decision of the supervisory board to condemn the censorship of Tsipras´ speech was then kept confidential through governmental pressure. In fact, they silenced the board, which just had been implemented by them to guarantee transparence and media freedom in order to establish the “Greek BBC”.

Additionally the strong influence of politics affects the staff for these boards. Gaining for influence, parties often not only constrain the original task of these organs (control of content of the PSB and assurance of independence to the PSB) by creating informal circles to govern them. They are even used as a direct point of access to influence Public Service Broadcasters, like Jakubowicz proofed for Polish TVP1. And to give a Greek example of manipulation, driven through the control boards: the former NERIT-president Prokopakis received a wish-list of hires from former president George Papandreou – by a member of the board of directors.

Making things even worse, in August 2014 the government used its parliamentary majority to pass a hidden amendment, which changes the process of recruiting NERITs supervisory board, lacking any previous debate. From then on, the members of NERIT´s supervisory board are elected by a simple majority of parliament, after they have been recommended by representatives of the government. Even though the former process was criticized being too complicated, this legislation gives the government direct access to the organ, which should guarantee the independence from them.

(2.) Small Political Risk of Direct Intervention. Government Spokesmen Sofia Voultepsi directly intervened by a phone-call to general director of content Vassilis Thomopoulos to censor the broadcast of the Tsipras-Speech. This was published in a letter of former NERIT-President Antonis Makrydimitris and Vice-President Rodolfos Moronis. Besides the fact that this kind of direct intervention – a strong violation of the statutes of every European PSB – must be facilitated by other grievances (proximity of media and political system, a lack of job security or lack of professionalism), politicians must assume to be successful by intervening. Otherwise they would risk their reputation or even their job. The Greek media system with a long and questionable “tradition” of interventions in ERT seems to enable its politicians to such behavior, indicated by interventions of several former governments, which also succeeded. The alleged nepotism of ERT, providing jobs for failed politicians on recommendation of government, indicates as well the close and disastrous interconnection between PSB and state.

(3.) Uncertain Legal Frame (and Lack of Professionalism). When Ms. Voultepsi called Mr. Vassilis Thomopoulos, he subsequently ordered not to broadcast the speech of Tsipras, however the speech of the prime minister and the opposition leader had conventionally been broadcasted from the Thessaloniki International Fair. Two motives assumingly let him take this order from government spokesmen Ms. Voultepsi accomplishing the interference. a) He feared to lose his job or another professional disadvantage, in case of denying the wish of a member of government. Then he would be a potential victim of a supposed defective legal framework of the PSB, because on base of NERITs statutes and principles he would not have to fear any negative consequences to follow. This might be the case, because Mr. Thomopoulos reportedly has been in danger to be moved from his post on behalf of the prime minister. b) He maintains personal relations to the government or potentially benefits from the decision of censorship. Then he would demonstrate a lack of professionalism.

In other conditions, comparable interventions are more likely to fail. The attempted interference of German conservative party Spokesman Hans Michael Strepp gives an example. In 2012 he was calling the responsible editor of daily “heute”-news-magazine of Germanys Second German Television (ZDF), demanding not to cover from a party meeting of the socialist party. The disclosure of this severe violation of press freedom let him hand in his resignation a few days later. The direct comparison of the Greek and the German cases might confirm Hanrettys analysis, that a reliable law-system decreases the probability of political interference. But it does not protect them from political interference at all, like another case regarding ZDF in 2009 showed (The so-called “Brender-case”).

The case of NERIT is part of a long tradition of Greek politics disregarding Public Service Broadcasters. Looking back in 2013 there is much evidence indicating the sudden closing of ERT in June 2013 was not only motivated to fulfill austerity-demands, like government always likes to reason it. Yes, ERT was already perceived as one of the most heavily biased PSB in Europe, together with Italy, Macedonia and Moldova, the European Media Systems Survey revealed in 2010. But by continuing the described politics the governing elites would put an already shrinking capital once more on risk: the legitimacy of PSB among the Greek public, which is based on its de-facto independence. And there are other points to considerate the last years of Greek PSB-media-policy. Although ERT hasn’t been a fully independent broadcaster at all and was shaken by nepotism and financial mismanagement, it is very questionable, if timing for the reset of Greek PSB from ERT to NERIT was right.

A basic reason to doubt is that ERT covered more independently than most private media and especially as its successor DT (the predecessor to NERIT), conclude Petros Iosifides and Irini Katsirea in their profound study on PSB in Greece. And especially in times of turmoil journalism provided by Public Service Broadcasters is needed as democracy-watchdog. Even more in a concentrated media market like the Greek one (caused by an unregulated Greek media regulation policy for decades), where, for instance, investigative journalists suffer legal prosecution due to political purposes, one less dependent broadcaster would be helpful controlling the political and economical elites. Hopefully Mr. Tsipras turns his experience of being a victim of political interference in PSB to a brighter, more independent future for NERIT/ERT.

Disclosure: The author works also as free-lance editor for Second German Television (ZDF).

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ECtHR Vindicates Hidden Camera’s Role in Watchdog Journalism

Haldimann and Others v. Switzerland, a decision of the European Court of Human Rights (the “ECtHR”) published on 24 February 2015, backed the investigative methods of four Swiss journalists who had used hidden cameras to expose the malpractice of insurance brokers.

by Flutura Kusari (EIJC) and  Nani Jansen, Legal Director of the Media Legal Defence Initiative, March 2015

kusariThe ECtHR found by a majority decision that the journalists’ criminal conviction by the domestic courts and an order to pay a number of small fines violated their right to freedom of expression as guaranteed by Article 10 of the European Convention of Human Rights. It was the first time the ECtHR examined the use of hidden cameras by journalists in a case where the person filmed was targeted as a representative of a particular profession rather than in a personal capacity.

Facts of the case

In February 2003, four Swiss journalists, Ulrich Mathias Haldimann, Hansjörg Utz, Monika Annemarie Balmer and Fiona Ruth Strebel, used hidden cameras in the filming of a documentary on the professional practices of those selling life insurance products. The documentary was prepared by Balmer, the editor of “Kassensturz” a weekly TV programme on consumer protection, as a reaction to the public dissatisfaction surrounding the tactics used by insurance brokers.

To prove the insurance brokers’ malpractice, Strebel, presenting herself as a costumer, met with a broker in a room where two hidden cameras were placed. The conversation was being recorded and transmitted to a neighbouring room where Balmer and an insurance specialist were present. At the end of the interview, Balmer entered the room, introduced herself and informed the broker that he had been filmed. When asked to comment on the taped meeting, the broker refused to do so. On 25 March 2003 “Kassensturz” broadcast segments of the interview, but camouflaged the voice and face of the broker.

Domestic Courts: Journalists Could Have Used Different Methods

On 5 November 2007, three of the journalists were convicted for having recorded the conversation of others and for violating someone’s secret or private domain by means of a recording device. The journalist who met with the insurance agent was convicted for the non-authorised recording of conversations and also for violating the secret or private domain by means of a recording device. All journalists were ordered to pay a number of small fines.

The Federal Court, while recognising the public interest in securing information on malpractice in the insurance field, upheld the decision on appeal arguing that the journalists “could have used different means” for their reporting, which would have been “less damaging to the broker’s private interests.”

Assessment of the Court

In its judgment, the ECtHR reiterated its case-law on attacks on the personal reputation of public figures and the six criteria established in the 2012 decision in Axel Springer v. Germany in order to balance the right to freedom of expression against the right to private life: the contribution to a debate of general interest, how well-known the person being reported on is and the subject of the report, the person’s prior conduct, the method of obtaining the information, the veracity, content, form and repercussions of the report, and the penalty imposed.

Applying those criteria to the present case, the ECtHR specifically took account of the fact that the insurance broker was not a public figure. The ECtHR also considered that the documentary had not intended to criticise him personally, but instead sought to denounce specific commercial practices. The ECtHR noted that, even if the broker might reasonably have believed that the interview was private, the documentary had focused not on him personally, but on specific practices used within a particular professional category.

The ECtHR further observed that the subject of the documentary was a matter of public interest and that the report contributed to a public debate on the issue. The ECtHR asserted that the applicants deserved the benefit of the doubt due to their alleged desire to observe the ethics of journalism as defined by Swiss law, referring to the example of their limited use of the hidden camera footage in this instance. The safeguard afforded by Article 10 to journalists reporting on matters of public interest is subject to the condition that they are acting in good faith, in accordance with the ethics of journalism and have a sufficient factual basis for their reporting. The ECtHR noted that the veracity of the facts had never been contested.

As regards the manner in which the documentary had been broadcast and how the broker was presented, the ECtHR observed that the recording had been broadcast in the context of a report which was particularly negative in as far as the broker was concerned. The ECtHR noted that audio-visual media often had a much more direct and powerful effect than the written press. However, a decisive factor was that the applicants had disguised the broker’s face and voice. The ECtHR concluded that the interference with the private life of the broker had not been of sufficient gravity to override the public interest in receiving information on the alleged malpractice of insurance brokers in general.

Lastly, the ECtHR considered that despite the relative leniency of the penalties, such a criminal sentence could discourage the media from expressing criticism, even though the applicants had not been prevented from broadcasting their documentary. The ECtHR therefore concluded that there had been a violation of Article 10.

Dissenting Opinion

A dissenting opinion was written by Judge Lemmens who disagreed with the majority’s reasoning that there was a competing interest between Article 8 and Article 10 ECHR to be balanced; in his view the domestic law under which the journalists were convicted protected the confidentiality of all non-public conversations and not just those of specific individuals. The guiding principle should therefore be the protection of public order (ordre public) rather than the rights and reputations of others.

On the question of proportionality, the dissenting opinion states that, while the report concerned a matter of public interest and the right to freedom of expression should be given substantial weight, the protection of the confidentiality of private conversations also was of considerable importance. In balancing these interests, a margin of appreciation should be granted to the domestic courts and in this case, Judge Lemmens was of the view that these had weighed the competing interests adequately. Given that the interference was not disproportionate and served a legitimate aim provided by law, there was no violation of Article 10.

Third Party Intervention

The Media Legal Defence Initiative (“MLDI”), of which one of the authors of this post is the Legal Director, filed a third-party intervention, presenting arguments on the importance of the use of undercover techniques for not only investigative journalism, but also campaigning groups and whistleblowers. Used in an ethical and focused fashion, MLDI argued, undercover techniques such as the use of hidden cameras are “tools of last resort to expose the true practices of the subjects of investigation, used to cast light on wrongdoing that cannot realistically be identified or proved by other means.”

Drawing upon comparative law examples from different jurisdictions on the ethical use of undercover techniques, the intervention argued, amongst others, that any criminal prosecution of a journalist, acting in good faith and in accordance with standard journalistic ethics, simply for the use of an undercover technique for gathering material or evidencing a story was a substantial interference with journalistic free speech that required careful justification under Article 10(2) ECHR and that any blanket ban upon either the use of undercover techniques to uncover a story or the subsequent use of the recorded materials obtained without considering the public interest in the story was necessarily a breach of Article 10(2) ECHR.

Comment

The ECtHR’s decision that the conviction of journalists for using hidden cameras to expose malpractices in the insurance sector – a clear matter of public interest – infringed the journalists’ right to freedom of expression is a welcome one. As the ECtHR reiterated, even relatively small fines can have a chilling effect discouraging the media from using certain journalistic methods for their reporting.

Until now, conducting interviews with the use of hidden cameras, a technique used mainly in undercover journalism, was considered unsafe due to the litigation risk. The ECtHR decision has made it safer for journalists to use hidden cameras, provided that certain criteria are fulfilled. However, the case has been determined based on particular elements and it is not clear whether the ECtHR would support the use of hidden cameras if there were alternative methods to obtain the information.

As noted above, in its decision the ECtHR has applied the well-established privacy test formulated in Axel Springer v. Germany.. Absent a referral to and subsequent divergent decision from the Grand Chamber, this decision would mark an extension of the second step of the Axel Springer test. In considering the question how well known the person concerned is, the ECtHR stated in Axel Springer that “a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true for public figures”. In Haldimann, the ECtHR found the infringement of the broker’s privacy justified, even though he was not a public figure. Since his face and voice had been disguised and the documentary focused not on him as an individual, but intended to criticise insurance practices, the interference had not been serious enough to override the public interest.

Another notable feature is that the ECtHR appears to hold on to the premise that a place of work should be considered a “private place” (see Niemietz v. Germany). This raises the question how the interests would have been balanced had the footage been recorded on what are considered business premises and what the implications for the protection of the Article 10 rights would have been.

This post originally appeared on the Strasbourg Observers blog and is reproduced with permission and thanks.

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LOST CREDIBILITY

Prosecutor Maria Bamieh blowed the corruption whistle – and lost her job with Eulex. Now she wants to sue the European Union.

by Flutura Kusari,  January 2015

kusariWhistleblower Maria Bamieh has revealed she will sue EU mission in Kosovo EULEX for discrimination and victimization after being suspended for “breach of the code of conduct.” She has made these comments during the symposium “Whistleblowing in Europe: The case of EULEX and Maria Bamieh” organized by Human Rights Center and Center for Journalism Studies of Ghent University on December 2014.

Bamieh, a former prosecutor of European Mission on Rule of Law in Kosovo, a mission exercising limited prosecutorial and judicial powers, claims that the EU mission in charge of fighting corruption may be corrupt itself. EULEX is the EU’s largest civil mission launched to strengthen rule of law in Kosovo, costing European taxpayers around 111 million Euro every year since 2008.

During her speech at Ghent University, Bamieh presented a detailed chronology of two years events beginning in May 2012 when she requested internal investigations against her colleagues for possible bribe taking. The peak of the events: On October 24, 2014 EULEX suspended her for allegedly leaking information. Three days after the suspension, Bamieh blow the whistle publicly by accusing EULEX for neglecting her allegation for inside corruption. From now on the former British prosecutor Bamieh herself is accused for leaking information and documents to Kosovo daily newspaper Koha Ditore. But the editor-in-chief of the newspaper Agron Bajrami says she was not the source.

“I went public because they not only discriminated and intimidated me after I filed requests for internal investigations, but they also humiliated me publicly by dismissing me from the office with security guards. What would the local people think of me? That Maria Bamieh did something wrong,” said Bamieh. “Now you tell what is worse: leaking documents to suspects or speaking about wrongdoings in the press. I spoke about wrongdoings in the press and I was suspended, someone was leaking but there is no investigation about that,” continued Bamieh.

The members of the European Parliament Richard Howit (Labour Party, United Kingdom) and Ulrike Lunacek (Green Party, Austria) have publicly called for thorough investigations of the allegations that EULEX officials took bribes to shut down cases. Currently, there are at least two investigations in relation to this case, one being against Bamieh for leaking information and a second one missioned by the “High Representative of the European Union for Foreign Affairs and Security Policy” Federica Mogherini. Mogherini has appointed Jean Paul Jacque as an independent expert to review the EULEX mandate implementation with a focus on the handling of the corruption allegations. Bamieh is concerned of the work of Jean Paul Jacque. “He will investigate how EULEX handles corruption, but what about corruption itself?”

On 14 November 2014, the European Ombudsman Emily O’Reilly, closed her own-initiative inquiry to assess EULEX “given that the criminal pre-trial investigation by the joint judicial team, as well as the review carried out by the external expert appointed by the EU High Representative, are still on-going.” According to the decision to close the inquiry, the Ombudsman noted that EULEX did not follow its standard procedure for investigating corruption allegations.

Media Law Professor Dirk Voorhoof (Ghent University) explains that the European Court of Human Rights has established six criteria to help to determine the necessity of an interference with a whistleblower’s freedom of expression, namely:

  1. public interest involved in the disclosed information,
  2. authenticity of the information disclosed,
  3. the damage, if any, suffered by the authority or the employer as a result of the disclosure in question,
  4. the motive behind the actions of the reporting employee,
  5. whether, the information was made public as a last resort, following disclosure to a superior or other competent body and
  6. severity of the sanction imposed.

These criteria would be assessed if the case reaches ECtHR. Does EULEX meet these standards?

Until recently, EULEX enjoyed an almost unquestionable reputation amongst Kosovar citizens in contrast to its predecessor United Nation Interim Mission in Kosovo which, in several occasions, was found to be in violation of human rights. Both missions in Kosovo have been aiming at building the state of Kosovo based on the best European practices. Kosovar authorities were “lectured” constantly by EU representatives how to base their laws, judgments and other public policies on international instruments such as the Universal Declaration on Human Rights, European Convention on Human Rights, International Covenant on Civil and Political Rights, Council of Europe Recommendations and ECtHR jurisprudence. Therefore the case of Maria Bamieh represents a sensitive test whether this mission will protect human rights, in this case freedom of expression, in line with the own standards that EU officials have been preaching to Kosovars since the country’s independence in 2008.

Read more about this case:

The Guardian

EU’s biggest foreign mission in turmoil over corruption row

Maria Bamieh: ‘I learned to adapt and survive’

EU accused over its Kosovo mission: ‘Corruption has grown exponentially’

The EU Observer

EU mission in Kosovo rocked by corruption allegations

Ombudsman to investigate EU mission in Kosovo

British MEP wants Olaf probe into EU mission in Kosovo

The Independent

Maria Bamieh: The British lawyer claiming to expose corruption at heart of EU mission to Kosovo

Daily Mail

British fraud hunter exposes EU staff on the take… in her own anti-corruption unit