CYRUS FINANCE GROUP
Executive summary
In this policy paper, ARTICLE 19 proposes a set of recommendations to state
actors and policy makers about what they should do to promote and protect the
rights of bloggers domestically and internationally. It also gives practical advice
to bloggers about their rights and explains how – and in what situations – they can
invoke some of the privileges and defences that traditional journalists have found
vital to the integrity of their work.
In common with many other aspects of modern life, the Internet has transformed
the way in which we communicate with one another. Where the printed press and
broadcast media were once the main sources of information, the Internet has
made it possible for any person to publish ideas, information and opinions to the
entire world. In particular, blogging and social media now rival newspapers and
television as dominant sources of news and information. Unsurprisingly, these
developments have also called into question the very definition of ‘journalism’ and
‘media’ in the digital age. It has also raised difficult questions of how the activities
of bloggers and ‘citizen journalists’ can be reconciled to existing models of media
regulation.
ARTICLE 19 argues that it is no longer appropriate to define journalism and
journalists by reference to some recognised body of training, or affiliation with
a news entity or professional body. On the contrary, ARTICLE 19 believes that
the definition of journalism should be functional, i.e. journalism is an activity
that can be exercised by anyone. Accordingly, it argues that international human
rights law must protect bloggers just as it protects journalists. The policy paper
therefore addresses the key areas that bloggers are likely to face, that is: licensing,
real-name registration (vs. anonymity), accreditation, the protection of sources,
protection from violence, legal liability and ethical responsibility and suggests
ways for them to be addressed.
Key recommendations
– Relevant legal standards should reflect the fact that ‘journalism’ consists
of disseminating information and ideas to the public by any means of
communication. As such, it is an activity which can be exercised by anyone.
– Any definition of the term ‘journalist’ should be broad, to include any natural
or legal person who is regularly or professionally engaged in the collection
and dissemination of information to the public via any means of mass
communication.
– Bloggers should never be required to obtain a licence to blog.
– Bloggers should never be required to register with the government or other
official bodies.
– Accreditation schemes must meet international freedom of expression
standards and should ensure that:
– all applicants, including bloggers, who meet the minimum requirements
defined in the law should be automatically issued with a ‘press’ facilitation
card;
– press cards should only be required to get access to events or premises
where there is a clear need to limit attendance based on limited space or
the potential for disruption;
– the conditions for obtaining a press card should be based on the overall
public interest and not on considerations such as affiliation with a
professional association or degree in journalism.
– Legal commentators, including bloggers, should be allowed to use social media
from court rooms if the hearings are open to the public.
– To the extent that they are engaged in journalistic activity, bloggers should be
able to rely on the right to protect their sources.
– Any request to disclose sources should be strictly limited to the most serious
cases. It should be approved only by an independent judge in a fair and public
hearing with a possibility of an appeal.
– State authorities must guarantee the safety of bloggers using a variety of
measures, including the prohibition of crimes against freedom of expression in
their domestic laws.
– States must take reasonable steps to protect bloggers and other individuals
actively engaged in online communities when they know or ought to know of
the existence of a real and immediate risk to the life of an identified blogger as
a result of the criminal acts of a third party;
– State authorities must carry out independent, speedy and effective
investigations into threats or violent attacks against bloggers or other
individuals engaged in journalistic activity online.
– The laws governing the liability of bloggers, including defamation law,
incitement and other speech-related offences, must comply with international
freedom of expression standards.
– As a general rule, bloggers should not be held liable for comments made by
third parties on their blogs in circumstances where they have not intervened or
modified those comments.
– For certain types of content, for example content that is defamatory or infringes
copyright, consideration should be given to adopting ‘notice-and-notice’
approaches whereby bloggers would be required to pass the complaint to the
original maker of the statement at issue, without removing the material upon
notice.
– The term ‘duties and responsibilities’ in Article 19 of the ICCPR and Article 10
of the European Convention must be interpreted flexibly to take into account
the particular situation of the blogger in question.
– Bloggers should not be forced to abide by the ethical codes or codes of conduct
developed by traditional media and should not be coerced or given an incentive
to join self-regulatory bodies for traditional media.
– Bloggers may decide to follow the ethical standards of traditional media of their
own accord. They can also develop their own code of practice either for their
own blogs or for associations they voluntarily join. Alternative dispute resolution
systems should also be encouraged.
– When bloggers produce a piece for a traditional newspaper, they should be
subject to the newspaper’s editorial control, and abide by the ethical standards
of journalists.
About ARTICLE 19
ARTICLE 19 is an international human rights organisation,
founded in 1986, which defends and promotes freedom
of expression and freedom of information worldwide.
It takes its mandate from the Universal Declaration of
Human Rights, which guarantees the right to freedom of
expression and information. An increasingly important
means to express oneself and to seek, receive and impart
information is through information and communication
technologies such as the Internet. Hence, ARTICLE 19
has been promoting the Internet freedoms for over 10
years and is active in developments in policy and practice
around freedom of expression and the Internet through our
network of partners, associates and expert contacts.
ARTICLE 19 encourages organisations and individuals to
give us feedback about how this policy brief is being used.
Please send your feedback to legal@article19.org.
This document has been published with support of the
Adessium Foundation of The Netherlands,
as part of their wider support for ARTICLE 19’s work on
freedom of expression and internet communications
technology
Table of contents
Introduction 6
Blogging and the definition of ‘journalism’ 8
Blogs, blogging, bloggers 9
The relationship between blogging and journalism 9
Bloggers and international standards
on freedom of expression 10
Freedom of expression under international law 11
Limitations of the right to freedom of expression 12
Bloggers, journalism and new media under international law 12
Licensing, registration and the anonymity of bloggers 15
Licensing and registration of schemes 16
Bloggers and accreditation 19
Accreditation under International Law 20
Bloggers and the protection of sources 22
Protection of sources under International Law 23
Violence against bloggers 25
Protection from violence under International Law 26
Bloggers’ liability 29
Bloggers and defamation 31
Bloggers and incitement to hatred 33
Bloggers and other offences 34
Bloggers’ liability for third-party content 35
Bloggers and ethical responsibilities 38
Bloggers and ‘duties and responsibilities’ 39
Bloggers and self-regulation
Introduction
Nothing is so unsettling to a social order as the presence
of a mass of scribes without suitable employment and
acknowledged status.
Eric Hoffer, The Ordeal of Change, 1963
Many of the current forms of publication have nothing to do with paper. Thanks to
the Internet, traditional media – both print and broadcast – are no longer fully in
charge of the information flow and no longer hold a monopoly over it. Anyone with
access to a computer or a smartphone can gather and disseminate information.
Anyone can make their own broadcast. Anyone can publicly communicate their
opinions and ideas to the entire world via a blog or social media network.
Many bloggers gather information in the public interest in much the same way as
traditional journalists. They interview sources, check facts and debate important
public issues. In countries where the traditional media is heavily censored,
blogging provides people with a rare opportunity to distribute information and
exercise their right to freedom of expression.
Many traditional journalists and media also have blogs or use social media. Most
media outlets feature blogs on their websites or recruit bloggers to provide content
for them. They also embrace social media by inviting readers, listeners or viewers
to follow their activities on Facebook or Twitter.
A number of bloggers have also created organised communities or forged ways
of cooperating that bear certain similarities to publishing houses or established
media institutions. This means that the boundaries between blogging and
traditional media/journalism are now blurred and raises difficult questions about
what and who count as ‘media’ and ‘journalists’ in this digital age.
At the same time, blogging itself encompasses a broad spectrum of activities, not
all of which necessarily fall within the definition of ‘journalism’. Many blogs are
social in nature, describing personal or family occupations, entertainment, etc.
Some argue that many blogs are simply rants, others that they are very dangerous1
and others that they have no value at all.
