Reporters Without Borders

New law fails to protect journalists, creates new problems

New law fails to protect journalists, creates new problems

Published on Tuesday 6 September 2011. Updated on Wednesday 7 September 2011.
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Reporters Without Borders regards Iraq’s new law on the protection of journalists as pointless at best and dangerous at worst. Adopted on 9 August, the law had been under discussion since 2009.

The law that was finally adopted contained changes to the draft that was presented to parliament in May, and took account of the many comments made at the time, including those made by Reporters Without Borders in a letter to the authorities on 10 May that was released on 16 May. In that sense, the final law seems to represent an improvement.

Although some of the criticized provisions in the earlier draft were dropped, the law’s overall lack of effectiveness and usefulness is unchanged. The result is a succession of 19 articles devoid of specifics despite the bold declared intention not only to “ensure the protection of journalists” (as in the earlier version) but also to “promote the rights of journalists and provide them with needed protection.”

President Jalal Talabani described the law as “stemming from respect for the freedom of the press and expression, as well as guaranteeing the rights of Iraqi journalists and their heirs, and their important role in realizing democracy in the new Iraq.” But this was little more than empty rhetoric.

Where are the concrete measures? Where are the sanctions for violations of the principles proclaimed in the law? Where is the compensation fund? Where is the training for the police and judiciary in protecting journalists and prosecuting attacks on the press? Where is the repeal of jail sentences for journalists and where are the specific measures to protect the confidentiality of sources and access to information?

The law’s vagueness and many serious omissions are all the more incomprehensible for the fact that many NGOs including Reporters Without Borders offered a detailed critique, proposed specific changes to the wording and recommended ways to better protect journalists and combat impunity for physical attacks on the media.

Reporters Without Borders therefore thinks that this law, which aims to protect Iraqi journalists, in fact does nothing to improve the current situation for the media and even represents an additional danger for media freedom and freedom of information.

Only three articles place the authorities under any obligation to support journalists. Article 3 obscurely states that “state and public sector institutions, and any other entities where journalists operate, undertake to provide them with the facilities required by their obligations and in such a way as to preserve their dignity.” Articles 11 and 12 mention compensation, but only for freelance journalists, and the provision of free medical care, but without going into more detail about a proper system of social benefits.

In order to really protect journalists’ independence and physical integrity and combat impunity for those responsible for crimes of violence against journalists, the Iraqi authorities should adopt concrete measures and make effective resources available instead of limiting themselves to statements of intent.

More detailed comments

As said, the law contains improvements on the earlier draft. For example, journalists no longer have to belong to the journalists’ union in order to be protected by the law. And, despite its imprecision and omissions, article 1 defines “journalist” and “media,” which the draft did not.

As regards judicial proceedings against a journalist, subsection 3 of article 10 says: “The Union of Journalists or the head of the news media that employs the journalist or the person they designate may attend the interrogation, preliminary investigation or trial.” This provision could help to avoid harassment and threats, but it is vague.

Vague wording

- Article 1 defines the terms “journalist” and “media” too vaguely and too narrowly. The concept of “journalism” is not developed and only “full-time” work is taken into account. Article 2 talks of “protection” and journalists’ “rights” but does not define them. Also, if the law protects only journalists, then it excludes media assistants, bloggers and anyone else providing the public with news and information.

Recognition of the right to “preserve the confidentiality of sources of information” (article 4, subsection 2) is positive but too imprecise, and it is regrettable that the issue of protecting sources is just mentioned in passing. This provision gives no real protection.

Repeated conditioning on respect for “laws” or “judicial decisions”

The law conditions all journalistic rights on “respect for the law.” Aside from stating the obvious, this provides no additional protection. This vague principle is reiterated several times without specifying the content or article of law alluded to, posing a major danger to the ability of journalists to work properly.

Such is the case with the following rights:

Access to information (article 4-1 and 6-1)

- Article 4 subsection 1 refers to the possibility of accessing information, data and statistics “that are not prohibited by their different sources” and “within the limits of the law.” Conditioning access on other legal provisions renders it very illusory.

- Article (6) 1: “The journalist has right of access to official reports, information and statements, and the relevant authorities are required to guarantee this right, unless divulging this content would be detrimental to the public interest or contrary to legal provisions.” This clause nullifies the positive affirmation of the right of access to information, without clearly defining what “the public interest” means. It is highly likely that officials who want to prevent the release of information will use this restriction, especially as no procedures are specified. And there is no provision for appealing against a refusal to release documents.

Freedom to publish information

- Article 5, subsection 2 (new) – “The journalist has the right to publish comments when he considers this to be appropriate, in order to express his view, independently of differences of opinion and interpretation and within the limits of respect for the law.”

- Article 7 (repeated) - “No one has the right to encroach on the journalist’s tools of work unless this is permitted by the law.”

Article 7 seems to want to protect “the journalist’s tools” but is imprecise because neither the term “tool” nor “encroach on” is explained. To really protect journalists’ equipment and material, the criminal code would have to contain specific provisions for searches and seizures, and sanctions for violations of the confidentiality of sources. Exceptions would have to be really exceptional and require authorization from an independent judge. Saying that searches and seizures are possible when “permitted by the law” completely nullifies the protection.

- Article 8 (repeated)

Article 8 is one of the most confusing and pointless in this law. It says “the journalist cannot be held responsible for his opinions or the information he publishes, and these opinions or this information cannot be regarded as reasons for causing him any prejudice, unless his actions are contrary to the law.” This confusion between “opinions” and “information” is dangerous. The law should strictly define the circumstances in which journalists can be held responsible without any need to distinguish between “opinions” and information.” And the definition needs to respect international legal standards.

Some of the law’s articles provide for a judge to intervene and authorize restrictions on the rights of journalists. The introduction of arbitration by judges might seem reassuring, but no guidance or directive imposes any limits or conditions on their action. The lack of precision increases the danger of arbitrary intervention.

- Article 15 says “it is forbidden to prevent the publication of newspapers or to permit their seizure unless this is done by judicial decision.” Prior bans or seizures should be exceptional measures that are strictly limited to extremely grave offences and when no other, less draconian, measure is possible.

- Article 10 seems to want to protect journalists from overly “heavy-handed” interrogation but it is obvious – and essential for the respect of defence rights – that a judge should have to give his permission for a journalist to be interrogated in the event of “an investigation into a crime that has been attributed to him and is linked to his work as a journalist.” To really protect journalists, the authorities should set about decriminalizing press offences rather than calling them “crimes.”

Finally, far from proposing a system of social benefits and protection, or containing provisions about labour rights for journalists, the law just offers generalities about the need for a “work contract” and a ban on “arbitrary dismissal,” and refers vaguely to the labour law.

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