Statement

Iraq: Law on journalists’ protection fails to protect rights

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ARTICLE 19

14 Sep 2011

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ARTICLE 19 has analysed the law on the protection of journalists ("the Law") that was adopted by the Iraqi Legislature, the Council of Representatives, on 9 August 2011. While ARTICLE 19 understands the attempts by political actors and journalists' organisations to shore up protection for journalists in Iraq, one of the most dangerous places in the world for journalists, the recently adopted Law is not the best way to achieve these ends. Although the adopted Law improves on earlier drafts, overall it does not comprehensively address the failings of earlier drafts of the Law. In our assessment, the Law falls below international human rights standards on freedom of expression and the right to information in numerous ways and will not serve the stated goal of protecting journalists in Iraq.

In ARTICLE 19's opinion, the Law should be amended to address the problems indicated below. It should reflect the model Draft Law on the Protection and Regulation of Journalists and Media Workers that was drafted by ARTICLE 19 in August 2010. In order to more effectively protect journalists and media workers, Iraq's state authorities should also implement Iraq's international human rights obligations, provide safety training courses for journalists, allocate enhanced resources and training for law enforcement officials, prosecutors and the judiciary, adopt right to information legislation and reform Iraq's criminal defamation laws.

Improvements on Earlier Drafts

The Law improves on earlier drafts in several ways. It is positive that membership of the Iraqi Journalists' Syndicate is no longer the crucial and defining characteristic of who is a journalist (Article 1(1) modified). The purported reasons for issuing this Law have been framed in human rights language; they are to "honor freedom of journalism and expression, to guarantee the rights of Iraqi and journalists and their heirs and to emphasize the importance of their role in establishing in the new Iraq" (final article, modified). The Law's aim is now "to promote the rights of journalists and ensure their protection within the republic of Iraq" (Article 2 modified). There are also provisions requiring the Ministry of Finance to provide "financial allocations" (Article 17 modified) and indicating that the Law will override any conflicting legislation (Article 18, new).

Problems with the Adopted Law

Reliance on Existing Legislation

Although the Law claims to override any other legislation (Article 18 new), it relies on other legislation – through terms such as "in accordance with the law", a term which qualifies nine of the Law's provisions – to give its provisions meaning. The result is a lack of precision and uncertainty about the scope of protection offered by the Law and the entrenchment of existing deficiencies of Iraqi legislation. For example, although the Law provides that journalists have the "right to obtain information, news, data and statistics" (Article 4(1) modified), this is restricted "in accordance" with domestic law which does not provide for a general right to information.

The Law states also that journalists have the "right to comment on what they see fit to clear opinions regardless of dissension and intellectual interpretations in accordance to the law" (Article 5(2) modified) and "should not be questioned for their opinions or information they publish, unless their action was against the law" (Article 8 modified). Such provisions do nothing to address the existing weaknesses of the protection for freedom of expression in the Iraqi Constitution and the large number of laws that criminalise a range of expression, such as the 1969 Penal Code which criminalises defamation and libel and the 1968 Publications Law which provides for up to seven years jail for publicly insulting the government.

Furthermore, the Law provides that interception of journalistic equipment or tools is not permissible except "in accordance with the law". However, any provision on the interference with, seizure of, or damage to journalistic equipment or tools should indicate, at minimum, that the state has the burden of demonstrating that any search or seizure has been provided by law, pursues a legitimate aim, and is necessary and proportionate in the circumstances.

Definition of Journalist

The Law defines that a journalist is "every individual practicing a full time journalism job" (Article 1 (1) modified), without defining "journalism" itself and preventing part-time journalists from being protected by the Law. ARTICLE 19 has previously argued that any law concerning journalists should provide that a journalist is "any natural person who is regularly and professionally engaged in the collection and dissemination of information for the public via any means of mass communication", a more comprehensive and internationally accepted definition of who is a journalist.

Distinction between Journalists and Others

The Law continues to draw a fundamental distinction between Iraqi journalists and other members of society in various ways. The provisions of the Law apply to Iraqi journalists only (Article 1(2) modified) ignoring the reality that Iraq remains a dangerous place for journalists whatever their nationality. Furthermore, the Law allocates a higher degree of protection to Iraqi journalists as compared with other individuals, by punishing assaults against such journalists more seriously (Article 9, unmodified), by affording them free healthcare if they are injured in the course of their work (Article 12 modified) and by allocating them if they are injured or the heirs if they are killed because of their work a pension (Article 11 modified). Such provisions are problematic from the perspective of international human rights law on non-discrimination and on the determination of criminal responsibility in the enjoyment of human rights, and also potentially compromise the independence of journalists.

De Facto Registration Scheme

The Law maintains that "local and foreign media entities working in the republic of Iraq must commit to sign contracts with journalists working for them according to a form set by the syndicate centrally or through its branch in the region" (Article 13 modified). Thus, this provision establishes a de facto registration scheme which is unnecessary and may be open to abuse.

A Lack of Precision on Confidentiality of Sources

The confidentiality of journalists' sources (Article 4(2) modified) is protected, but in a very general way. Any provision on this subject should be more specific, stating that: (1) journalists should not be required to disclose the identity of their confidential sources, unpublished materials, notes, documents or other materials that may reveal information about their sources or journalistic processes; and (2) that any request to obtain information should be strictly limited to the most serious of cases (eg if it is necessary to prevent a major or serious crime or for the defence of a person accused of having committed a major crime) and only be approved by an independent judge in a fair and public hearing and subject to appeal to an impartial body.

Potential Restrictions on Expression to "Preserve Dignity of Journalism"

The Law states that state bodies and agencies should facilitate journalists' work "in a way to preserve the dignity of journalism", a provision which may be used to restrict journalists rights to practice journalism while purporting to protect them (Article 3, unmodified).

ARTICLE 19 urges Iraq's state bodies to address the problems indicated above by amending the Law in accordance with international human rights law and principles on freedom of expression. In doing so, they should reflect the provisions of the model Draft Law on the Protection and Regulation of Journalists and Media Workers that was drafted by ARTICLE 19 in August 2010. In order to protect journalists in Iraq more effectively, Iraq's state authorities should also provide safety training courses for journalists, allocate enhanced resources and training for law enforcement officials, prosecutors and the judiciary, adopt right to information legislation and reform Iraq's criminal defamation laws.

ENDS

 

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