Meediavabaduse reguleerimine – allikakaitse ja vastulause õigus
Date
2009
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Tartu Ülikool
Abstract
Description
Regulating Media Freedom: Protection of Journalistic Sources and Right of Reply
The present research paper comprises of two articles: „Media freedom and the protection of
journalistic sources“ and „Individual versus the mass media: right of reply.“ These articles have
been previously published in Juridica, Estonian magazine of jurisprudence.
General introduction has been added, in order to produce framework of the conceptions and basic
law rationales underlying media freedom to free speech, and in connection with the
communication theory. Theoretical conceptions discussed include conception of publicity, critical
propaganda model, gatekeepers’ theory, general mass communications theory and conceptions of
constitutional law. The latter is discussed from the perspective of continental approach, including
ECHR jurisprudence and Estonian laws, adding some comparative aspects related to the common
law rationales of free speech.
The main argument of the thesis is that individual speech rights must not be granted to the mass
media on the equity bases. Instead, some differentiated privileges should be granted and special
obligations applied. Protection of journalistic sources and the right of reply are the two examples
of differentiated regulations on media freedom – an example of a privilege and an example of an
anti-privilege. Those exceptions of the general free speech right are in accordance with the press
freedom in a positive sense, which is not just another liberal right granted to the press, but include
special duties and responsibilities, thus supporting media accountability and creating favourable
conditions for serving the public interest.
Freedom of the Press and Protection of Sources. The protection of confidential or secret media
sources is a guarantee for the freedom of the media, which has its constitutional foundation in the
freedom of the written word and information. The general aim of protecting sources could be
considered to be informing the public of important state and social issues, as well as public
control over the execution of public authority. Protection of sources is not an unrestricted right.
The limit is set by the legal rights that are listed in the clause restricting freedom of expression,
primarily the interest of administration of justice, which could require the disclosure of the source
if it is necessary for determining the truth in a serious criminal matter. In guaranteeing the
protection of sources there is an accompanying danger of misusing this right, which is expressed
in the inability to check a confidential source, and in the reduction in the objectivity of the
information. Through his analysis of the regulation of protection of sources in Estonia, the author
takes the position that protection of sources in Estonia is not in accordance with the Constitution
and European standards. The laws on judicial proceedings should stipulate the obligation to
disclose confidential media sources, and the bases and procedures for clarifying these sources in
other ways. In future changes to the laws on proceedings it is important that the possibilities for
electronic surveillance be taken into account, and that these are balanced with appropriate
measures, so that the legal protection of sources could fulfil its objective in the current media
environment.
The Position of Individuals in Relation to the Media and the Right of Reply. In general, if false
information about a person is published in the media or a personal attack is made, the victim may
bring a claim before a court in order to protect his or her rights. Personality rights such as the
protection of honour, dignity and a person’s good name, the inviolability of private life and a
person’s right to their image can be protected in Estonia through civil proceedings. It is quite
another question whether lengthy court proceedings are in fact the best way to guarantee
personality rights infringed by the media, if one takes into account the interests of public
communication. The media operates independently and therefore even if a judgment is handed
down in a case, it may not significantly influence public opinion. The same holds true for misuse
of personal information. On the other hand, one has to consider that harsh penalties prescribed by
law or court judgments awarding large amounts in damages may keep media publications in line,
but they may also lead to a tendency to avoid addressing sensitive topics (chilling effect) This compromises the freedom of public communication and the role of the media in democratic
society.
Keywords
H Social Sciences (General), magistritööd