… or of the blogosphere?

Hungarian Civil Liberties Union logo, via their siteThe First Amendment to the US Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press; …”. Does that and similar declarations of press freedom extend to the blogosphere? The question is made more difficult in the context of Article 10 of the European Convention on Human Rights, which is a general protection of freedom of expression which contains no direct reference to the media at all, though the European Court of Human Rights has long extolled the “watchdog” role of the press as of especial value in Article 10 jurisprudence. The question is made more difficult still in the context of the Treaties establishing the European Union, where speech issues arise not as elements of a straightforward freedom of expression guarantee but in the context of the fundamental economic rights upon which the EU is founded, but even there the European Court of Justice has long acknowledged the importance of freedom of expression especially as regards the media. Over on contentandcarrier, Hans Peter Lehofer has spotted some interesting asides in recent judgments of the European Court of Justice and the European Court of Human Rights, signalling how those courts may be about to build on these developments and expand press freedom to non-traditional media, such as the blogosphere.

First in time is the ECJ decision in Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy (noted here by Daithí), which concerned the distribution of information by subscription to a text messaging service. The ECJ commented that the medium which is used to transmit data, whether it be paper or radio or the internet, is not determinative as to whether an activity is undertaken ‘solely for journalistic purposes’, so that publications may be classified as ‘journalistic activities’

if their object is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They are not limited to media undertakings and may be undertaken for profit-making purposes.

Then there is the more recent ECHR decision of Application no. 37374/05 Társaság a Szabadságjogokért v Hungary (noted here on the ECHR blog), in which the applicant – TASZ – was the Hungarian Civil Liberties Union. The ECHR commented that although the function of the press includes the creation of forums for public debate, the realisation of this function is not limited to the media. Indeed, the Court has repeatedly recognised civil society’s important contribution to the discussion of public affairs. Hence, since TASZ was an association involved in human rights litigation, it could

therefore be characterised, like the press, as a social “watchdog” … In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.

On the basis of these quotes, he concludes:

Summing it up: ECJ and ECHR have clearly moved to grant traditional press freedoms not only to traditional media, but also to SMS-information services (and, if implicitly, bloggers!) and NGOs engaged in “the creation of forums for public debate”.

I like that parenthesis, and I think he is quite right (in the ECJ context, Daithí had already made the connection). The question of the extent to which bloggers are journalists and are entitled to extended legal protections analogous to any which the mainstream media may enjoy is a very important one. To take one example. In the very near future, I’m going to return to the question of journalists’ source privilege. Where it exits, should bloggers also have the benefit of it? Hans Peter Lehofer’s analysis suggests that, at least so far as the ECHR and the ECJ are concerned, the answer that is beginning to emerge in principle is: yes.

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