Licensing of media workers

Some governments require individuals to get a licence before working in the media, using the justification that this will ensure their integrity. In most cases such licensing is used as a political tool for governments to suppress alternative, critical or diverse voices.

Some countries require individuals who wish to work in the media, in particular journalists, to obtain official permission before commencing their activities.

The power to distribute licences can become a political tool, used to prevent critical or independent journalists from publishing

 

Sometimes, an actual licence or permit is needed. In other cases, journalists can effectively be prohibited from practising their profession due to a requirement to join a professional organisation, for which membership may be denied. Because their practical effect is the same, we refer to such requirements collectively as ‘licensing schemes’.

The ostensible purpose of licensing schemes is usually to ensure that the task of informing the public is reserved for competent persons of high moral integrity.

In practice, however, the power to distribute licences can become a political tool, used to prevent critical or independent journalists from publishing. For this reason, and simply because the right to express oneself through the mass media belongs to everyone, irrespective of qualifications or moral standing, licensing schemes for media workers are considered to be in breach of the right to freedom of expression.

An important source of legal authority on the subject of licensing schemes is a 1985 opinion of the IACtHR. It was recognised in the case that licensing was a restriction on freedom of expression. Costa Rica and its supporters argued that a requirement for journalists to become members of a ‘colegio’ (association) was legitimate for three different reasons: first, because it was necessary for public order and the ‘normal’ way to regulate the profession in many countries; second, because it sought to promote higher professional and ethical standards, which would benefit society at large and ensure the right of the public to receive full and truthful information; and third, because the licensing scheme would guarantee the independence of journalists in relation to their employers.

Examining the first argument, the IACtHR remarked that the organisation of professions, including journalism, through associations could facilitate the development of a coherent system of values and principles, and so contribute to public order, if that term was understood widely. However, it also observed that the same concept of public order would benefit much more from scrupulous respect for freedom of expression:

Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard ... It is ... in the interest of the democratic public order ... that the right of each individual to express himself freely and that of society as a whole to receive information be scrupulously respected.

The IACtHR found that licensing, by restricting access to the journalistic profession, was therefore harmful to, rather than supportive of, public order.

Responding to the argument that a licensing regime is simply the ‘normal’ way to regulate certain professions, the IACtHR distinguished between journalism and, for example, the practice of law or medicine. In contrast to lawyers and physicians, the activities of journalists – the seeking, receiving and imparting of information and ideas – are specifically protected as a human right, namely the right to freedom of expression.

The IACtHR also dismissed the argument that licensing schemes are necessary to ensure the public’s right to be informed, by screening out poor journalists. The IACtHR felt such a system would ultimately prove counterproductive:

[G]eneral welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare ... A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violates the right to information that this same society has.

Turning, finally, to the argument that a licensing scheme would strengthen the profession and thereby help protect media workers against their employers, the IACtHR found that this goal could be accomplished through less intrusive means, without the need to restrict the practice of journalism to a limited group. As such, the licensing scheme failed to meet the necessity test.

Having rejected the three principal arguments for permitting a licensing scheme for individual journalists, the IACtHR concluded, unanimously, that such schemes constitute a violation of the right to freedom of expression.

Other courts, national as well as international, have taken a similar point of view. For example, in August 1997, the High Court of Zambia invalidated an attempt to establish a statutory body to regulate journalists, stating that any effort to license journalists would breach the right to freedom of expression, regardless of the form that effort took.

The three special mandates for protecting freedom of expression – the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression – adopt a Joint Declaration each year setting out standards relating to important freedom of expression issues. In their 2004 Declaration, they stated: “Individual journalists should not be required to be licensed or to register.”

It is thus clear that, under international law, licensing and even registration of media workers is prohibited. In practice, licensing schemes for journalists are virtually unheard of in established democracies.

Other professional entry requirements

Other entry requirements on the exercise of professions in the media, such as a requirement to have attained a certain age, to possess particular academic qualifications, or to have a clean criminal record, are imposed in some countries.

Entry requirements are distinct from licensing schemes, insofar as they do not involve an official body making a case-by-case decision about who may and who may not practise journalism. Nevertheless, entry requirements are inconsistent with international law for the same reasons: they fail to recognise that the right to express oneself through the mass media belongs to everyone, not only persons who the government considers particularly qualified or suitable. They also deprive the general public of the right to receive information and ideas from diverse sources of their own choice.

Furthermore, the practical effectiveness of entry requirements as a means of ensuring quality journalism is questionable. They may prevent talented young people who have not yet reached the age threshold from developing their research and writing skills, or drive out competent journalists with no degree in favour of unskilled academics.

The Inter-American Commission on Human Rights has issued a Declaration condemning one specific type of entry requirement:

Every person has the right to communicate his/her views by any means and in any form. Compulsory membership or the requirement of a university degree for the practice of journalism constitute unlawful restrictions of freedom of expression.

The three special mandates on freedom of expression at the OAS, UN and OSCE have stated: “There should be no legal restrictions on who may practise journalism.”

Barring from practice

In a small number of countries, the law provides for the possibility of temporarily, or even permanently, stripping an individual of the right to practise journalism or other media professions.

If this power is exercised by the government, it is equivalent in effect to a licensing scheme, and therefore similarly impermissible under international law. More often, however, the power is exercised by courts as a sanction in criminal proceedings. For example, in 1997 a number of Kyrgyz journalists were barred from practicing journalism for 18 months, as part of a conviction for libelling the director of a state-owned gold-mining company.

International courts have rarely addressed the question of whether an embargo on a journalist, imposed as a criminal sanction, can ever be a justifiable restriction on freedom of expression. The case of De Becker v. Belgium, decided by the ECmHR, suggests that a penalty of this type may only be applied in highly exceptional circumstances, if ever.

De Becker, a Belgian journalist and writer, had been sentenced to death for collaborating with the German authorities during the Second World War. The sentence was commuted and de Becker was released, but he was prohibited for life from participating in the publication of a newspaper. The ECmHR ruled that Belgium had breached the right to freedom of expression, because the ban was imposed inflexibly, without any provision for its relaxation at a later time when public morals and public order would have been re-established. It was therefore not “necessary in a democratic society”, as required by the three-part test for restrictions on freedom of expression.

Although the ECmHR did not rule out the possibility of prohibiting an individual from publishing, it clearly attached importance to the extreme circumstances of that particular case – Belgium was just emerging from five years of war and enemy occupation, during which De Becker had committed treason – and felt the ban should be discontinued as soon as a degree of normalcy had been re-established.

In today’s more peaceful world, it is highly unlikely that an international court would uphold a ban on practising as a journalist, particularly for less serious offences such as libel or tax evasion. It should be presumed that prohibiting journalists from publishing violates international law.

Freedom of association

Many journalists may actually be keen to join a professional association on a voluntary basis, or found new groups amongst themselves. The right to form associations and trade unions is recognised as a separate human right under the main international human rights instruments, including the UDHR and the ICCPR, which guarantees freedom of association in Article 22: “Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”

The right to freedom of association is subject to similar restrictions as the right to freedom of expression. Any interference with the right, therefore, has to pass the strict three-part test. A government policy which prohibits the establishment of independent journalists’ organisations will virtually always fail to pass muster under this test.

Journalists’ associations may play a useful role in improving the working conditions of media professionals. They can also help their members raise professional and ethical standards, for example by organising training and developing voluntary codes of conduct.

The right to gather news and accreditation schemes

Gathering information is clearly essential to the media, and national courts have often confirmed that the activity of newsgathering is protected under the right to freedom of expression which includes a right to ‘seek and receive’ information and ideas.

For example, the Japanese Supreme Court has stated:

[I]t goes without saying that the freedom to report facts, along with the freedom to express ideas, is grounded in the guarantees of Article 21 [of the Constitution] ..., which provides for freedom of expression. Moreover, in order that the contents of the reports of such mass media may be correct, the freedom to gather news for informational purposes, as well as the freedom to report, must be accorded due respect…

States usually impose some limits on the right of journalists to gather information, such as a prohibition to enter sensitive military or civilian installations, or to attend certain court hearings. Like all restrictions on freedom of expression, restrictions on newsgathering must comply with the three-part test.

A common source of conflict in respect of newsgathering is the right of journalists to gain physical access to government buildings. On the one hand, the media must be permitted to attend meetings of parliament and other public bodies, so that they can report accurately on political developments and perform their vital role of public watchdog. On the other hand, some buildings may simply lack the capacity to accommodate every interested journalist, or there may be legitimate concerns that a large media presence would get in the way of effective government.

To prevent overcrowding in the press gallery, large institutions such as the national parliament often regulate access through an accreditation scheme. Usually, this means that journalists can apply for a press card, which must be produced upon entry on days when the audience exceeds the number of seats available. Smaller bodies either rely on the same system, or impose restrictions on a case-by-case basis. Holders of press cards are sometimes granted certain privileges, such as access to communication facilities and front row seats. In the United Kingdom, for example, so-called ‘Lobby Correspondents’ have access to a full office, with a computer and Internet access.

While accreditation schemes can be genuinely necessary, they are also a common source of abuse. Governments often refuse to grant press cards to critical journalists, or require possession of such cards in situations where there are no authentic space or other constraints. To address these problems, various international bodies have developed standards which states’ accreditation schemes must meet.

The UNHRCm has stated that the ‘necessity test’ means that an accreditation procedure should not be susceptible to political interference and should impair the right to gather news as little as possible. Furthermore, the number of accredited journalists permitted to attend an event may be limited only when there are demonstrable problems in accommodating all those interested. In particular, the UNHRCm stated:

[I]ts operation and application must be shown as necessary and proportionate to the goal in question and not arbitrary ... The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent.

The UN, OSCE and OAS Special Mandates have echoed these points and elaborated on them further:

Accreditation schemes for journalists are appropriate only where necessary to provide them with privileged access to certain places and/or events; such schemes should be overseen by an independent body and accreditation decisions should be taken pursuant to a fair and transparent process, based on clear and non-discriminatory criteria published in advance. Accreditation should never be subject to withdrawal based only on the content of an individual journalist’s work.

The OSCE has similarly stressed that journalists should not lose their accreditation based on the contents of their writings:

Recalling that the legitimate pursuit of journalists’ professional activity will neither render them liable to expulsion nor otherwise penalize them, [member States] will refrain from taking restrictive measures such as withdrawing a journalist’s accreditation or expelling him because of the content of the reporting of the journalist or of his information media.

To summarise these points, in order to comply with international standards, an accreditation scheme must, at a minimum:

  1. Be administered by a body which is independent from the government and follows a transparent procedure
  2. Be based on specific, non-discriminatory, and reasonable criteria published in advance
  3. Only be applied to the extent justifiable by genuine space constraints

Not permit accreditation to be withdrawn based on the work of the journalist or media outlet concerned.