Scoping the Journalists’ Freedom to Conduct Newsgathering at the European Court of Human Rights: A Step Toward a More Human Rights-Based Approach to the Coverage of ECHR Article 10?

Abstract

At the European Court of Human Rights (ECtHR), responding governments often argue that the right to “Freedom of expression” (Article 10) does not apply to cases because of journalists’ controversial methods of information gathering (such as wiretapping, secret recording, the use of aliases, and other methods). This article examines how the ECtHR’s international adjudication is a test of the boundaries of the freedom of journalism. It shows that it is a common human rights issue for the ECtHR to consider the justiciability of wide, principled freedoms about newsgathering. Through a conceptual, legal study of twenty-seven cases covering the past two decades, the analysis is focused on the criteria surrounding the scope of ECHR Article 10, paragraph 1, concerning the acts of a member state. It is argued that the way that the ECtHR is defining the contours of the freedom to conduct newsgathering and investigative journalism provides an undue challenge to legal certainty, because it is tending too much towards including a wide range of elements related to either journalistic ethics or “duties,” such as the lawfulness of journalists' conduct. The article advocates that a more human rights-based coverage under ECHR Article 10 is needed.