Reporting about potentially violent demonstrations: Journalistic Freedoms and Police Powers

under the European Convention on Human Rights

Stefan Kirchner

In recent months, a number of states which are parties to the European Convention on Human
Rights (ECHR), such as Ukraine, Turkey and Germany (Hamburg, Stuttgart) have experienced
large scale demonstrations which have turned violent. Often, journalists are at risk of being
attacked and injured while reporting from such protests. A recent decision by the European
Court of Human Rights deals with the question how the police and regulate journalistic activities
in such situations.

In Pentikinen v. Finland the European Court of Human Rights allowed the police to designate
specic areas for journalists, even though this made it more difcult to report about such
protests. One could be forgiven for considering this case to be fairly simple in nature. While
limiting the if of the reporting, not even prescribing how to report, the police simply
regulated where to report without directly preventing the journalists access to the situation.
However, allowing the police to regulate journalistic activities in such a manner is problematic in
two regards - the factual limitations imposed on journalistic work and the possibility of abuse of
such powers.

But that is not the end of the story. What matters really is not so much what happened in this
case but what could have happened next: This police power can easily be abused by
designating areas from which effective reporting is simply not possible. Also, protests etc. often
are not static in nature but uid and volatile events. What might have been a perfectly secure
place from which to report in one moment might become an extremely dangerous location in
the next - of so far from the action that no meaningful reporting is possible simply because there
is no access to the necessary information anymore. It is in this context that the Courts decision
can have challenging consequences for police forces. Once the decision has been made to
designate a specic area for reporters, the police has an obligation to ensure that this area
remains secure or that reporters are able to leave the area once when it becomes less than
secure. This already follows from the positive dimension of the states duty to protect human life
under Article 2 ECHR. On the other hand does the obligation to protect journalistic freedoms
also require public authorities to refrain from making journalistic work impossible. If meaningful
journalistic work is no longer possible from the designated area, the state would be in violation
of its obligations if it would not designate a new journalism area from which reporting is
possible. In either case, this will increase the workload of police ofcers, who would not be
available to fulll their primary tasks at the same time. It is not permitted that the state bans
reporting a specic situation altogether as this would not be necessary in a democratic society.

Therefore, while the European Court of Human Rights permits the establishment of journalism
zones, police forces are well advised to consider whether their establishment is really necessary
as it would lead to a number of follow-up obligations on the part of public authorities. In any
case are authorities obliged to protect the rights and freedoms of everybody under their
jurisdiction - even in very difcult circumstances such as mass protests.