CASE STUDY (II) ON FREEDOM OF EXPRESSION IN THE CONTEXT OF THE MEDIA (Deliverable 7.4)

The objective of WP7 is to study, from the perspective of EU citizenship, specific problems EU citizens face in exercising civil rights and liberties in areas which fall within the scope of EU law, but also in areas beyond the scope of EU law. In the EU legal context, fundamental rights, including civil rights, have gained not only visibility but also, arguably, significance, now that the Lisbon Treaty has made the Charter of Fundamental Rights legally binding. Media freedom and policy in the EU in general has been widely researched and studied, focusing largely on the areas less directly relevant for citizens, i.e. television and radio broadcasting, media regulators, etc. This case study therefore focuses on tackling barriers in an area more relevant for individual citizens’ freedom of expression, referred to as citizens’ journalism. This is a new field of practice and research, where conceptual clarifications are needed and which calls for further research into the application and evolution of legal and procedural frameworks, in line with changing journalism landscape (blogs, online comments, etc). The Council of the European Union adopted Guidelines on freedom of expression online and offline for its external policy, while it does not have such guidelines internally, for its member states. Internally, freedom of expression is not strongly under the radar. There has been a discussion whether the mutual recognition of judgments in civil and commercial matters should not apply to defamation cases, since there is so much divergence. At the end, this has not become the case, therefore the strong substantive divergences remain, and need to be mutually recognized, with all resulting problems with forum shopping, and a potential race to the bottom. This report’s initial understanding of citizen journalist has deliberately been an uncircumscribed one, in order not to impose an arbitrary, potentially too narrow concept on the different legal orders examined in this task. Therefore, the questionnaire was drafted to screen all possible forms of citizen journalism, such as blogs, social media, comments, wiki contributions, and had asked specific questions about their status, responsibility, sanctions on their own, and in comparison to a generally perceived category of journalism if there is one in the given legal system. Citizen journalism is generally seen to provide an important avenue for political participation, the political engagement of citizens between elections, and the reinvigoration of a sense of authenticity or belonging. In an era of mistrust in both domestic and EU political institutions, republicanism is gaining appeal: scholarship has already recognized the need with regard to citizen journalism specifically, Ian Cram wrote a whole book on citizen journalism from the republican perspective. If there is any chance that the internet creates a truly republican "digital commons" so many hope for, it would certainly not be possible without citizen journalists. Equally, any prospect that EU citizens develop or further develop a transnational political discourse or an European public opinion or political public as Habermas would argue, presupposes citizen journalists writing on it. In this sense, citizen journalists writing on EU issues appear to be a necessary (though naturally insufficient) condition for more political, social, or in any sense thicker (post/or beyond-market) version of EU citizenship, both in practice and conceptually. The so conceived ideal of citizen journalism would promote these more ambitious ideals of European citizenship and democracy. This is not to deny that activities looking like citizen journalism might of course harm others or might go beyond the scope of freedom of expression, and violate privacy rights or spread hate messages, and so on. There is some literature observing that citizen journalism might run the risks of bad journalism (hate speech, misinformation, etc.) to a larger extent than professional journalism. The initial understanding of this paper however was not to form any view on that. The risks generally do not seem to outweigh the massive legitimacy and other political-moral gains a more engaged transnational citizenry would bring to the European project. Furthermore, there was no indication that courts would be less willing to grant protection against violations of privacy, equality or dignity if caused by citizen journalists. This deliverable undertakes to check what the legal conditions are under which they operate, and whether there is convergence or divergence between different EU countries’ legal orders in this regard