Free press – Looking at both ends

Within the  “Policy+People” Initiative, James Cannon looks at how in some of the biggest democracies, the idea of free and proper journalism is under institutional threat. 

Image Source: FreePress

Last April, the Paris-based organization Reporters Without Borders released its annual World Press Freedom Index. Canada ranks a very respectable 18th position in this year’s Index. India, another constitutional democracy, an abysmal 133rd.

Why compare Canada and India’s rankings? Though both countries have constitutionally-entrenched protections for freedom of speech and expression, and by extension freedom of the press, one might question the interest of comparing countries at such opposite ends of the spectrum on a given issue.

Simply because recent events in both countries have shown that press freedom is a vulnerable thing, no matter whether you rank 18th or 133rd.  One of the major news developments in Canada in recent weeks concerns the spying of journalists by police in response to public disclosures of sensitive, or simply embarrassing, information. Meanwhile, the Indian government has recently ordered the closure of a number of media outlets, notably in the insurgent region of Kashmir. Officially, it has done so on the basis of prioritizing national security; in point of fact, the silencing of dissenting of voices has also been an unstated objective.

The point of this essay is not to argue that the media should enjoy immunity. As will be seen, there are situations in which it may be legitimate and even necessary to limit the freedom enjoyed by the press.  The point is instead to reaffirm a widely-held principle in democracies that such limits should be exceptional, always weighed against the public’s interest in being informed.

Canada

Last November 2nd, Montreal’s McGill University was host to a video conference by Edward Snowden, and the timing of his insight on press freedom and surveillance was particularly appropriate. His virtual appearance in Montréal came just as Canadians took stock of troubling revelations concerning the surveillance of local journalists by municipal and state police.

It all started on October 31st, when it was revealed that Patrick Lagacé, a well-known journalist from La Presse newspaper, had his iPhone tracked for calls, text messages and geo-location as part of a months-long covert police operation earlier in 2016.  The Montréal police successfully obtained a warrant on Mr. Lagacé, author of a number of embarrassing stories concerning the city’s internal police affairs, in an effort to confirm his suspected sources within the police force.

Then, in the hours before Snowden’s address, the news came out that at least six other journalists had been spied by the provincial police. The year was 2013, and the context was yet another leak-related, source-tracking affair: the police sought to find out was was responsible for leaking information concerning a probe into then-president of the Federation of Labor Michel Arsenault, as part of a larger investigation examining the relationship between the construction industry and organized crime. These new set of revelations came one month or so after another Quebec journalist, Michael Nyugen, saw his computer be confiscated by the provincial police for revealing allegedly confidential information regarding a judge under investigation. It turns out that the “confidential” information was easily accessible on the judicial council’s website all along.

While the Nyugen affair provoked some measure of public discussion and controversy, the more recent developments were roundly decried as assaults against press freedom by members of the media throughout Canada and beyond. Amongst others,  one of Canada’s major dailies, the Toronto Star, described the Lagacé affair as  “unprecedented in Canadian history” ; Reporters Without Borders wrote Canadian Prime Minister Justin Trudeau a letter outlining its concerns about deteriorating press freedom in Canada; And Peter Bale, the editor of the Washington D.C.-based Global Editors Network, spoke of an “outrageous breach of precedent and a threat to media freedom in Québec”.

The Canadian political class was also quick to express concern. Encouragingly, the provincial government has ordered a public inquiry into the protection of journalistic sources. Meanwhile, the Canadian government has spoken about potentially toughening the rules governing its capacity and authority to  investigate journalists.  So despite all the controversy Snowden has sowed in the past, he is unlikely to provoke much of any when he describes these events as “radical attack[s] on the operations of free press”. The press is often called the “fourth estate” because it helps to keep the legislative, executive and judicial branches of government accountable by making information of public interest available to the electorate. In a democracy, this function of the independent media is fundamental.

As a prominent Québec columnist recently noted, to say this is not akin to glorifying the work of journalists. Nor does it amount to saying journalists should enjoy immunity: one can imagine a situation in which a journalist possesses information key to resolving a crime, which the police could then obtain access to through proper judicial means.  In fact, Canadian law enables judges or justices of the peace to authorize search warrants if there are “reasonable grounds” to believe such a warrant could produce information relevant to the commission of a crime.

Regarding the disclosure of confidential sources more specifically, Canada’s Supreme Court  established a balancing test in 2010 requiring judges to weigh the disclosure of such sources against the public interest in benefitting from investigative reporting . Ultimately, the Court ruled that journalistic sources should only be disclosed when there are no other means to obtain the sought out information and when the “administration of justice” demands it.

Which is why one of the most shocking aspects of this story is that the police actually obtained judicial authorization to track these journalists’ phones.  The journalists in question were not suspected of any wrongdoing, and neither was the “administration of justice” at issue in their cases: they were simply put under surveillance by a police force eager to crack down on leaks within its ranks.

And while it is clearly in the police’s own interest to do so, such a motive cannot rightly be conceived by a judge as justifying such gross intrusions into the privacy of journalists just doing their job. Unless the judges in question aren’t doing theirs.

Let’s move from one end of the spectrum to the other. India and Canada have both found yet another thing in common. Image: NarendraModi.in

India

If pliable justices recently facilitated attacks against press freedom in Canada, the same cannot be said about India. Since June, the government has partially done away with the formality of obtaining judicial authorization to interfere with the work of the press, giving itself the power to issue media closures of up to thirty days without having to go through the courts.  It made use of this power on November 2nd, when the information and broadcasting ministry declared a one-day ban on the news channel NDTV for allegedly violating security guidelines in its coverage of a terrorist attack at a military base last January.

The Ministry ordered the ban on the pretext that, in its coverage of the attack, the media group disclosed “strategically-sensitive details concerning the Pathankot air force base. The government argued that the ongoing anti-terrorist operation was made vulnerable by the media’s continuous coverage since it made information concerning the operation readily available to everyone, including the terrorists themselves.

The ban, which was supposed to take effect on November 9th, has since been put on hold after the channel’s co-chairman Prannoy Roy appealed the constitutional validity of the decision with India’s Supreme Court.

While the Indian Government has previously imposed temporary bans on television channels, it is the first time it imposes such a ban under its new rules  governing media  coverage of terrorism, which became effective last year.  The rules were put in place to avoid a repeat of the kind of media coverage that surrounded the 26/11 Mumbai attacks. In 2011, India’s Supreme Court sharply criticized the role of the media in covering the counter-terrorist operation, arguing that its continuous coverage had made  “ the task of the security forces not only exceedingly difficult but also dangerous and risky” The new clause in the Cable Television Network  Rules dictate that the coverage of anti-terrorist operations should be limited “ to periodic briefing by any officer designated by the appropriate government

Whether or not the government exceeded its bounds by banning NDTV for a day will be determined by the Supreme Court. But at the very least, the government’s argument concerning the irresponsibility of channel’s coverage of the attack is defensible, especially in light of the Court’s comments in 2011. Elsewhere, however, the state’s handling of the media environment has proven more distinctly problematic.

This is the case in Indian-administered Kashmir. Claimed in full by both Pakistan and India but divided between the two, the Muslim-majority Kashmiri region has been the subject of bitter territorial dispute between the two countries for decades. A majority of Indian Kashmiris are in favor of a merger with Pakistan or full independence for their region. Since the 1990’s, uprisings against Indian rule and India’s military response have resulted in over 68,000 deaths.

An uptick in protests against the federal government was sparked last summer over the death of Burhwan Wani, a popular Kashmiri militant, killed in a gun-battle with government forces. Over eighty people have been killed and 12,000 injured since the insurrection began. The uprising has been met with curfews, police raids of media outlets, newspapers being prevented from printing,  and the intermittent disabling of cable services and internet in an effort to control the kind of information available to the public.

The closing of a Kashmir paper, the Kashmir reader, is a prime example of the government’s effort to stifle local Kashmiri media. In its justification of the ban, the court order cited “material and content which tends to incite acts of violence and disturb public peace and tranquillity”. The court, however, failed to identify exactly which “ material and content” was at fault

Meanwhile, most national media outlets tend to closely follow the government’s stance in their coverage of the Kashmir conflict. This narrative has long been to blame arch-rival Pakistan for fomenting separatism in the region and supporting Kashmiri terrorism. One senior reporter who resigned from a major news channel in August explained his resignation on the basis that he had been forced to present fabricated reports on the region, more often than not from the prism of terrorism,

Journalists protest the shutting of Kashmir Reader. Image Source: Kashmir Monitor

The recent uprisings have surely made it convenient for Dehli to try and divert attention away from its clampdown against protesters and local media towards the threat of terrorism and the need for law and order. In this regard, the death of 18 Indian soldiers at the hands of militants last September played exactly into the government’s narrative. As one would expect, the Indian government wasted no time blaming Pakistan for orchestrating the attack . In this context, news which conforms to the government’s version of events is welcome, while coverage of the situation on the ground by independent Kashmiri media outlets- unlikely to align very well with the state’s preferred narrative- is not. Hence the raids and closures targeting the likes of the latter.

 

The situation in Kashmir is a clear-cut case of the state using national security as a pretext for stamping out critical expression, and should be condemned as such. The NDTV case, however, is not so clear-cut. The fact that the government proceeded to ban a media outlet without judicial approval, even if only temporarily, does raise serious free speech concerns. However, there is a strong case to be made in favor of regulating the kind of coverage the channel was sanctioned for in the first place, to the extent that such coverage endangers the efficacy of anti-terrorist operations and puts lives and national security at risk.

To put it briefly, the media should not enjoy a free reign.  On the other hand — and this is where we return to Canada — neither should law-enforcement officials in their capacity to obtain warrants.

Obtaining a warrant to uncover a journalist’s sources should be an exceptional situation guided by a concern for the administration of justice; it should not a rubber-stamping procedure enabling a de facto crack-down on leakers, with all the attendant effects this has on the capacity of journalists to do their work. When it comes to interfering with the work of the press, the ends of doing so should always be weighed against the public’s benefit in obtaining the relevant information. That should go for the 18th country on the Press Freedom Index just as much as the 133rd.

James-Patrick Cannon

James-Patrick Cannon

Junior Editor at InPRA
James-Patrick Cannon is a Bachelor of Laws studentat the Université de Montréal.
Hecompleted a Bachelor in Political Science and International Development at McGill University in 2014, and subsequently interned in the fields of education and human rights.

These internships contributed to his growing interest in South American politics. More broadly, his areas of interests includethe rule of law, democratization, and foreign affairs.

He is excited to join InPRA and gain a first experience in research and writing for a publication.
James-Patrick Cannon

Latest posts by James-Patrick Cannon (see all)