Protecting the right of journalists to cover demonstrations: a win for journalistic information gathering in Europe

Butkevich v Russia (European Court of Human Rights, Chamber, Application No. 5865/07, 13 February 2018)

Summary

The European Court of Human Rights (ECtHR) unanimously held that journalistic newsgathering during a public demonstration is a protected aspect of press freedom under article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). Any attempt to remove journalists from a scene of demonstration must thus be subject to “strict scrutiny”.

Facts

Mr Marksim Butkevich, the applicant, is a Ukrainian journalist who had been employed by a Ukrainian television channel. In July 2006, Mr Butkevich volunteered to cover the G8 Summit, which was held in the St Petersburg region. He was arrested by two police officers at an “anti-globalism” march which was taking place in Nevskiy Avenue, St Petersburg on 16 July 2006. During the time, Mr Butkevich was not wearing any distinctive clothing or insignia which designated him as a journalist. He did not participate in the protest and was merely observing people and taking photographs.

Immediately preceding his arrest, Mr Butkevich was approached and ordered by two police officers to switch off his camera and to cease his “unlawful actions”. According to the reports of the two police officers, he refused to comply despite several warnings. Consequently, he was formally detained and prosecuted for “disobeying a lawful order from a police officer”.

The applicant was brought before a court in an expedited manner under article 27.2 of the Code of the Russian Federation on Administrative Offences. On the same evening of his arrest, he was convicted as charged, and sentenced to three days of detention. Two days later, he appealed the sentence. The District Court of St Petersburg upheld the conviction but reduced the sentence to two days’ detention.

In January 2007, Mr Butkevich lodged an application with the ECtHR, against the Russian Federation. He alleged, inter alia, that his freedom of expression had been interfered with in an unlawful and disproportionate manner, in breach of article 10 of the Convention.

Decision

The Court found violations of

• article 5 § 1 of the Convention in respect of the applicant’s unlawful and disproportionate administrative arrest;
• article 6 § 1 of the Convention on account of the requirement of fairness and objective impartiality; and
• article 10 of the Convention in relation to the right to freedom of expression.

This case note concentrates on the article 10 violation.

Article 10(1) of the Convention expressly states that “everyone has the right to freedom of expression”. Such a right is to be “without interference by public authority”.

Article 10(2) of the Convention states that since the exercise of the freedom of expression “carries with it duties and responsibilities”, it “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.

The Government of the Russian Federation submitted that Mr Butkevich’s right to freedom of expression had not been interfered with, contrary to article 10(1) of the Convention. It was argued that his arrest and prosecution was attributed to the failure to obey a lawful order from the police.

Mr Butkevich maintained that although he was not wearing any distinctive clothing or insignia to designate him as a journalist, he had not participated in the protest. As such, he contended that his arrest, detention and prosecution was unjustified. Further, he submitted that journalists, like himself, should be protected under article 10 of the Convention because they play a vital role in gathering and disseminating information, especially during protests.

The Court, in its reasoning, underscored the significance of information gathering. It was reaffirmed that newsgathering is “an essential preparatory step in journalism and an inherent, protected part of press freedom”. The freedom of expression includes the publication of photographs.

The ECtHR concluded that the authorities’ actions in respect of the applicant — his arrest, detention and prosecution — amounted to an “interference” and therefore a violation of his right to freedom of expression under article 10 of the Convention. Two reasons were given for this decision.

First, the “interference” did not fall within the exceptions as listed in article 10(2) of the Convention. The applicant’s detention in the police station was not “prescribed by law”. The deprivation of Mr Butkevich’s liberty was not “reasonably considered necessary” in the circumstances of the case. His detention was neither required to prevent the commission of an offence nor necessary to prevent him from fleeing after having committed an offence.

Second, Mr Butkevich, acting as a journalist, was merely collecting information and photographic material relating to a public event. Since no evidence was adduced to show that the demonstration was unpeaceful or that it had turned violent, the administrative-offence proceedings in respect of Mr Butkevich were inadequate. Further, while stressing “the essential function the media fulfil in a democratic society”, the Court held that a “strict scrutiny” approach is to be adopted when attempting to remove journalists from the scene of demonstrations. This is also applicable to ensuing measures such as prosecution for an alleged offence.

In a unanimous judgment, the ECtHR found in favour of Mr Butkevich, awarding him EUR 7,000 in non-pecuniary damages, and EUR 2,000 in respect of costs and expenses.

Commentary

Freedom of expression is a fundamental human right that is central to the operation of the human rights system. Journalists and media experts play a vital role in facilitating the free dissemination of information and ideas that spur innovation. The free flow of information is necessary to secure transparency and accountability. This decision provides an unequivocal affirmation of the significant role that the media plays in democratic societies. Notably, the Court points out that the media’s “essential function” includes the provision of “information on the authorities’ handling of public demonstrations and the containment of disorder”.

Crucially, the decision suggests that journalists need not wear distinctive clothing or insignia whilst newsgathering at demonstrations. Article 10 of the Convention affords protection to the extent that the intention of the journalist is to collect and distribute information or photographic material. Further, the journalist may act independently, free from a journalistic assignment from a media outlet. These findings highlight the Court’s practical approach to the conception of journalists. Further, the Court appears to acknowledge that journalistic activities can originate from alternative sources, such as those reported by “citizen journalists”.

Ultimately, this decision marks the important role that journalists play in a democratic society. For this reason, they are afforded protection under the Convention when performing their “essential function” of newsgathering.

The full decision is available here.

Ken Kiat is an Assistant Editor of the Melbourne University Law Review.