Physical threats and attacks against media workers and HRDs aimed at ‘shutting them up’ are arguably the most flagrant interference with the right to freedom of expression possible.

Unfortunately, however, incidents of this kind are increasingly common worldwide.

When attacks occur, they are usually ostensibly committed by private persons; the government’s involvement ranges from none at all to tacit approval to active instigation. A government that consents to media workers being attacked is clearly in breach not only of the right to freedom of expression, but also of the right to liberty and security of the person, and even to life.

But the duty imposed on states under international law goes further: media workers must be actively protected, and threats and attacks against them must be investigated carefully.

Duty to prevent attacks

States are under not only a so-called ‘negative obligation’ to refrain from violating human rights but also a ‘positive obligation’ to ensure enjoyment of those rights. Article 2 of the ICCPR, for example, requires states to: “adopt such legislative or other measures as may be necessary to give effect to the rights recognised by the Covenant.” Several international courts and bodies have confirmed that this entails a duty to offer sufficient protection from violent attacks to citizens in general, and media workers in particular.

The ACPHR’s Declaration of Principles on Freedom of Expression states:

1. Attacks such as the murder, kidnapping, intimidation of and threats to media practitioners and others exercising their right to freedom of expression, as well as the material destruction of communications facilities, undermines independent journalism, freedom of expression and the free flow of information to the public.

2. States are under an obligation to take effective measures to prevent such attacks…

The UN, OSCE and OAS special mandates on freedom of expression have declared that the worldwide problem of violence against media workers has reached a crisis point and have called on states to: “take adequate measures to end the climate of impunity and such measures should include devoting sufficient resources and attention to preventing attacks on journalists and others exercising their right to freedom of expression.”

An important question is exactly how far the duty to protect reaches?

On the one hand, the protection should at least markedly reduce the risk of violence occurring; on the other hand, it should not go so far as to impose an extreme burden on the state or provide an excuse for constantly shadowing a journalist.

In the case of Osman v. the United Kingdom, the ECtHR provided some guidelines on this subject. The case concerned the question whether British police should have acted to prevent violent attacks against a child. The Court noted that it was beyond dispute that Article 2 of the ECHR, protecting the right to life, “may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.”

However, the duty to protect should not be such as to place: “an impossible or disproportionate burden on the authorities.” Not every claimed threat would automatically give rise to a right to protection. The Court found that the deciding factor should be whether: “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party.”

Duty to investigate attacks

If the authorities have been unable to prevent an attack against a media worker, they are obliged to investigate its circumstances and prosecute those responsible.

The purpose of such an investigation should be, in the words of the UNHRCm, to enable victims: “to discover the truth about the acts committed, to learn who are the authors thereof and to obtain suitable compensation.”

The IACtHR has stressed the importance to society as a whole of investigating attacks against the media. If this is not done, media workers may be deterred from performing their important task of informing the public, and ordinary citizens may also become more reluctant to denounce criminals or criticise public officials. In sum, an insufficient investigation “constitutes an incentive for all violators of human rights.”

To combat the risk that the authorities will conduct a sham investigation, the IACtHR has also specified criteria by which it will measure their sufficiency. Quoting jurisprudence from the ECtHR, it has held that the investigation must be concluded within a reasonable time; three factors are crucial for deciding what is ‘reasonable’:

a) The complexity of the matter

b) The judicial activity of the interested party

c) The behaviour of the judicial authorities.

State authorities must take the initiative: the investigation, “must ... be assumed by the State as its own legal duty, not as a step taken by private interests which depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.”

The IACMHR has applied these principles in two similar cases involving violence against media workers. In Miranda v. Mexico, the IACMHR found that the authorities had made very little effort to investigate the murder of a journalist known for his criticism of the government. While the investigation remained technically open, little concrete action was being taken. The IACMHR found that this constituted a violation of the state’s duty to investigate: “such an investigation lacks any meaning and is irremediably doomed to failure.”