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Can independent media survive where the rule of law is under threat?

Media freedom. Image: Exit.al
Media freedom. Image: Exit.al

A free and impartial media is the fourth pillar of democracy, alongside the legislature, the executive, and the judiciary. The right of journalists to question, criticise, and hold power to account should be a fundamental right.

Unfortunately, this is no longer the case.

Transparency International’s Freedom in the World 2019 report reveals a global decline in freedom even in the most long-standing democracies.

When governments seek to increase their grip on previously independent institutions, control over the media and a crackdown on criticism are fundamental elements of their strategy. Silencing those who question, discrediting those who criticise, and threatening or murdering those who reveal the truth is increasingly common.

What is the impact of populism, authoritarianism, corruption, organised crime, impunity, and a lack of judicial independence on the rule of law?

Does the crumbling of the three other pillars of democracy impact the fourth?

Can independent media survive in a landscape where the rule of law is under threat?

We compare the situation in five European Union states — Poland, Italy, Malta, Bulgaria, and Hungary — as well as potential EU-candidate Albania, drawing on news sources, human rights organisations and press freedom groups to demonstrate how a deterioration in a country’s judicial system means that freedom of expression suffers, too.

Country-specific analysis

A recent report by the United States Embassy in Albania found that the government posed the biggest threat to freedom of expression in the country. Interference from the police, prosecution and judiciary was also a concern for 23% of journalists surveyed.

Albania suffers from a number of shortcomings in its legal framework when it comes to press protection, particularly in the areas of defamation and labour law. Both are exploited to threaten journalists into changing their editorial line.

To cite just one example, a television reporter was assaulted by a state guard outside a government building in April. It was the second time she had been assaulted, but she didn’t report either incident to the police. Her case was not an isolated one. Over the last 18 months, journalists have had machine guns fired at their homes, received death threats on live television, had residence permits revoked, been targeted in smear campaigns, gassed, assaulted by police, sued by the Prime Minister, and fired for following politically sensitive stories. At the time of this writing, there has been no justice for any of them.

Fifty percent of journalists in Albania believe the courts do not adequately deal with threats against the press. Those journalists who do try to pursue legal recourse find it difficult to secure a lawyer willing to represent them, particularly when the other party is a member of government or someone with links to politics.

There is a prevalent attitude that the courts will not resolve matters in favour of the wronged party, and that the outcome depends entirely on politics, power, and money. Journalists are also left with little recourse after the initial court case, as there is currently no functioning high court or constitutional court in Albania.

Political interference in Albania doesn’t just target individual journalists. The Prosecutors office in Tirana issued an illegal order prohibiting the media from publishing wiretaps that implicated members of government who were colluding with criminal gangs to rig the country’s 2017 elections. The order was deemed not valid under local law and international human rights law.

Koloreto Cukali, Executive Director of the Albanian Media Council, cites a perceived lack of impartiality of the judicial system in Albania, noting its vulnerablity to political and corporate pressure.

“A journalist can do his work properly only when she or he knows that the law will always protect them and their work,” he said, “be it physically or financially. The lack of this protection, as is the case in Albania, automatically creates a sense of self-censorship, therefore reducing the media freedom.”

Media lawyer Dorian Matlija echoed these sentiments, adding, “My perception is that journalists don't pursue legal action because they don't want to pick up another fight, especially when they are not supported by their employers.”

Many investigative or critical journalists in Albania do not write under their own name, preferring to use a pseudonym to protect themselves and their families. The vast majority censor themselves due to fear of retribution, job loss, physical threats, or third-party interference.
There has been an increase in the harassment of independent media in Poland, resulting in “full-blown judicial persecution” of journalists and media outlets that are critical of the government.

Libel suits are regularly used to force the media to retract stories, particularly investigations that report on scandals at the heart of government and business.

Court cases also target individual journalists. For example, charges were filed against Piotr Wacowski for “spreading Nazi ideology”, and Wojciech Ciesla was summoned for questioning for allegedly revealing the address of a constitutional court president, despite not actually having done so.

In December 2018, Reporters Without Borders noted that, “Polish authorities (are) stepping up harassment of independent media.” They called on the Polish government to stop using the courts to harass journalists.

Deputy Prime Minister Piotr Glinski denied the allegations, stating Poland has “total press freedom”.

The judicial system in Poland is regularly used as a tool to silence or intimidate those journalists who criticise the government. The strength of the independent judiciary has also diminished since the PiS party came to power in 2015.

A 2017 Amnesty International report described judicial reforms in the country as an “attempt to dismantle human rights safeguards in Poland, in particular the right to a fair trial”. Some of the laws that have been implemented in these reforms are feared to result in “direct political pressure on judges”. Amnesty also raised concerns over both criminal and civil proceedings brought against journalists.

Concern about the current situation in Poland has been expressed by the European Commission, the Venice Commission, the United Nations Human Rights Committee, the European Council, and a number of international legal organisations.

In December 2017, the European Council officially stated that there was a clear risk of Poland breaching the rule of law. They recommended the country take a number of steps to restore judicial independence.

Despite ongoing dialogue, Brussels has been forced to step up its measures over concerns of growing authoritarianism. Poland is now subject to “Article 7” disciplinary investigations by fellow EU states that could potentially result in sanctions and the suspension of Poland’s voting rights.
Italy performs well when it comes to protecting journalists, but falls short in terms of justice, judicial independence, and judicial efficiency.

  A recent report from the European Centre for Press and Media Freedom focusing on the Mafia’s impact on press freedom describes Italy’s efforts as “commendable”. Twenty journalists are currently being provided with 24-hour police protection, including armed cars and police escorts.

Italian investigative journalist Lirio Abbate told the ECPMF that “the main merit of the Italian protection system is that it is based on risk prevention and it has proved to be effective. However, it can be improved at various levels.”

More than 3700 journalists and media workers in Italy reported that they had been threatened, intimidated, assaulted, or targeted with unsubstantiated libel charges between 2016 and 2018. The actual number is estimated to be 16 times higher.

These cases rarely result in investigation or prosecution. There is little in the way of legal recourse when it comes to pressing charges, and a shocking 90% of all reported cases of harassment against journalists goes unpunished.

According to Reporters Without Borders, the level of violence against journalists in Italy is on the increase in areas where the Mafia is active, including Campania, Calabria, Puglia, Sicily, and Rome.

RSF also reported that a number of journalists resort to self-censorship to avoid attacks from politicians. Members of the Five Star Movement publicly referred to journalists as “useless jackals” and “whores”. Other journalists have been threatened with the removal of police protection if they continued with a certain line of inquiry.

Libel is regularly used against journalists in Italy, and carries a prison sentence of up to six years if convicted. Minister Matteo Salvini has sued journalists for calling him a “buffoon” and “minister of the underworld”.

Opinions are divided when it comes to evaluating Italy on the rule of law.

The 2018 US State Department report on Human Rights observed that while the judiciary “generally respected judicial independence and impartiality”, the pace of court cases was very slow. It also noted that the independent media were “active” and expressed views without restriction.

The EU Justice Scoreboard 2019 was less optimistic, ranking Italy as one of the worst in the European Union when comparing independence and efficiency of justice systems among EU countries.
There is a clear link between the deterioration of the rule of law and the deterioration of media freedom in Malta.

Malta fell 12 places on the 2018 Reporters Without Borders (RSF) World Press Freedom Index, and is now the third worst country for media freedom in the EU after Hungary and Bulgaria. The country has plummeted a total of 32 places to number 77 since the governing Labour Party took power in 2013.

Political parties control most of the media in Malta, and the handful of independent journalists working outside that network are increasingly exposed to threats.

Members of the government openly attempt to discredit journalists, silence civil society and pursue libel cases against journalists. Government-approved SLAPPs (lawsuits launched in a foreign jurisdiction and designed to financially cripple the defendant) are also used to intimidate news portals into removing or amending stories. The Shift is the only media outlet in Malta that has refused to give in to such threats.

A 2018 report from the Venice Commission concluded that Malta does not have separation of powers and lacks significant checks and balances on executive power. It found that the country’s legal system was inconsistent with the essential requirements of the rule of law, and therefore incompatible with democracy. It also noted that the Government of Malta was not living up to its obligation to guarantee freedom of expression.

These sentiments were echoed in a recent report from the Council of Europe’s Committee on Legal Affairs and Human Rights, headed by Special Rapporteur Pieter Omtzigt. The Council  noted similar weaknesses in the rule of law and the criminal justice system, as well as issues relating to judicial appointments and the impartiality and independence of the courts.

The Government of Malta denies almost all of the findings, referring to them as “fake news” or part of a political agenda against Malta.

The country also has a serious problem with hate speech. A 2018 investigation by The Shift News found that much of this online hate speech is curated in secret Labour Party Facebook groups which include sitting politicians, government employees, the Prime Minister, and the ex-President among their members. These groups are deliberately used to stir up hate against journalist and activists who speak out against the government. Members of the group also openly celebrated the murder of investigative journalist Daphne Caruana Galizia.

Caruana Galizia was killed with a massive car bomb in 2017. Three individuals have been arrested in connection with her murder, but two years later they have not been charged, and could end up walking free if they are not brought to trial. The ‘masterminds’ who commissioned the killing have not been identified, and none of the politicians or businessmen Caruana Galizia wrote about have been questioned by police.

Prime Minister Joseph Muscat continues to block a public inquiry into the circumstances of Caruana Galizia’s death, and whether it could have been prevented. This is in clear violation of the European Convention on Human Rights, and despite pressure from the European Parliament, the United Nations, the Council of Europe, and the world’s independent media and human rights watchdogs.
Press freedom has been in rapid decline in Bulgaria, despite the country holding the European Council’s rotating presidency during the first half of 2018. The country now ranks as the worst in the EU, and one of the worst in the world for media freedom.

Reporters Without Borders described a situation in Bulgaria where “corruption and collusion between media, politicians, and oligarchs is widespread”. A significant percentage of the print, television and online media in the country is owned by a small number of people. EU funding is also given to media outlets without transparency, effectively “bribing” recipients to report favourably on the government.

Judicial harassment is also commonly used against independent media, and threats against reporters are on the rise, to the point where “journalism is now dangerous in Bulgaria”.

Television journalist Viktoria Marinova was murdered in October 2018, followed by what Reporters Without Borders described as a “blatant attempt by the authorities to cover up the circumstances.”

In May of the same year, investigative journalist Hristo Gehov was assaulted outside his home in the northwest of the country. Gehov writes for a number of websites and presents an online program. He was targeted after writing about municipality officials who used EU funds to renovate their homes.

“I attribute this attack entirely to my investigative reporting,” he said, “and to the warnings I sent to the authorities about the management of finances by the Cherven Bryag municipal government.” Geshov wrote this in a Facebook post a few hours after being punched in the stomach and back by an unidentified assailant, adding, “Despite the pain and many bruises, I am sure that I will not abandon my work, and the attack against me is a sign that I am right.”

This alarming situation is mirrored by declines in press freedom and judicial independence.

The 2018 annual report from the Friedrich Naumann Foundation ranked Bulgaria worst in the EU when it comes to rule of law, despite increased political stability. The report noted a number of concerns around party financing, media freedom, and vote buying, pointing out that “organised crime, powerful oligarchs, and high-level political corruption can undermine democratic procedures and decision making.”

Implementation of regulations is low in Hungary, and the court system is slow. Court cases against journalists take years and can be costly, which acts as a deterrent for those wishing to pursue justice.

Krassen Nikolov, a Bulgarian journalist with a speciality in judicial affairs, describes a situation where defending the independence of the judiciary seems impossible. Civil society groups struggle to attract more than 2000 to 3000 people to their protests. Nikolov attributes this to the fact that Bulgarians are “not ready to fight for a change in the status quo”, resulting in high levels of corruption and impunity.
Media independence and the judiciary are under attack in Hungary.

A large number of independent television stations, websites, and newspapers have been forced to close since 2014 due to lack of funding and the revocation of state advertising. Those 500 that remain are under the direct influence of the ruling Party.

In November 2018, the New York Times reported that hundreds of privately owned Hungarian media outlets had been “donated” to a holding company run by associates of Prime Minister Viktor Orban. Those outlets which did not join his consortium face closure and increased threats against their editorial independence.

The law is regularly used against journalists in Hungary, and lack of judicial independence leaves them without the means to pursue legal recourse against the government.

For example, charges were brought against prominent investigative reporter Andras Dezso in 2018 for “misuse of sensitive personal information”, despite this information being readily available in the public domain. The Committee to Protect Journalists immediately called for the charges to be dropped, stating that investigative reporting was not a crime.

Significant concerns have also been raised by the European Union, the Council of Europe, and the OSCE over the rule of law in Hungary.

A number of institutional and organisational changes since 2010 have contributed to a situation where checks on political power have been eliminated. The Helsinki Committee reported in 2018 that yet more laws had been introduced which would further restrict judicial independence and the freedom of judges to interpret the law.
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