Former UN Special Rapporteur on the rights to freedom of peaceful assembly and of association (2011-17)

The presence of the journalists, monitors and other observers plays a key role in ensuring the accountability of security personnel during the management of large gatherings. The Grand Chamber of the ECtHR has held that the authorities should not deliberately prevent or hinder the media from covering a demonstration.^[1]

In Pentikäinen v. Finland [ click for full case explanation ], it stated:

[T]he crucial role of the media in providing information on the authorities’ handling of public demonstrations and the containment of disorder must be underlined. The “watch-dog” role of the media assumes particular importance in such contexts since their presence is a guarantee that the authorities can be held to account for their conduct vis-à-vis the demonstrators and the public at large when it comes to the policing of large gatherings, including the methods used to control or disperse protesters or to preserve public order. Any attempt to remove journalists from the scene of demonstrations must therefore be subject to strict scrutiny.^[2]

The IACtHR has similarly emphasized the role of journalists in holding the authorities to account. In Vélez Restrepo and Family v. Colombia, a reporter had filmed how members of the Colombian army were beating a defenseless protester during a demonstration. Several soldiers then attacked the journalist, causing serious injuries, attempting (unsuccessfully) to seize his cassette, and destroying his camera. The IACtHR found that:

[T]he content of the information that Mr. Vélez Restrepo was recording was of public interest. Mr. Vélez Restrepo captured images of soldiers involved in actions to control the demonstration … The dissemination of that information enabled those who saw it to observe and verify whether, during the demonstration, the members of the armed forces were performing their duties correctly, with an appropriate use of force. This Court has stressed that “[d]emocratic control by society, through public opinion, encourages transparency in the State’s actions and promotes the accountability of public officials in relation to their public functions.”^[9]

The Court went on to conclude that the attack on Vélez Restrepo had violated his rights to personal integrity and to freedom of thought and expression. It also found various violations stemming from the State’s failure to meet its duty to investigate (see Assembly Section 14) the attack and act against subsequent threats and harassment directed against Vélez Restrepo.^[10]

UN Special Rapporteurs and several regional human rights mechanisms have similarly emphasized that there is a right to observe and make recordings at assemblies and to disseminate these.^[11]

When the authorities decide to disperse an assembly (see Assembly Section 13.4), those observing or recording should not be prevented from continuing to do so. The OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly state:

Third parties (such as monitors, journalists and photographers) may also be asked to disperse, but they should not be prevented from observing and recording the policing operation.^[12]

The AComHPR takes a similar view.^[13]

15.1 Do non-journalists have the same right to record as the press?

Both the IACtHR and the ECtHR have stated in general terms that professional journalists should not enjoy special privileges compared to others fulfilling a comparable function. The Grand Chamber of the ECtHR has held that “public watchdogs” (a term which includes NGOs, academic researchers, authors, bloggers and popular users of social media) should enjoy similar protection as the press when they report on matters of public interest.^[14] The IACtHR, in an advisory opinion, has taken the view that the practice of journalism is a right of every person, which should not be subject to formal requirements such as obtaining a license or becoming a member of a professional association.^[15]

The UN Special Rapporteur and his counterpart, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions state unambiguously that the right to record during assemblies belongs to “everyone” and should be protected:

Everyone — whether a participant, monitor or observer — shall enjoy the right to record an assembly, which includes the right to record the law enforcement operation. This also includes the right to record an interaction in which he or she is being recorded by a State agent — sometimes referred to as the right to “record back”. The State should protect this right.^[16]

15.2 May recordings of assemblies be seized by the authorities?

An order to turn recordings of an assembly over to the authorities qualifies as an interference with the right to freedom of expression,^[17] which must comply with the same three-prong test applicable to limitations on freedom of peaceful assembly (see Assembly Section 4).

In the first place, an order should not be issued unless it rests on a clear basis in law (see Assembly Section 4.2). Officers seizing material on the spot will fall foul of this requirement unless the law clearly empowers them to do so. The UN Special Rapporteur underlines the importance of due process:

Confiscation, seizure and/or destruction of notes and visual or audio recording equipment without due process should be prohibited and punished.^[18]

Second, the order must pursue a legitimate aim (see Assembly Section 4.3), such as the investigation of an offense committed during the assembly. A seizure whose aim is to conceal the actions of the authorities does not meet this requirement. Third and finally, the seizure must meet requirements of necessity and proportionality (see Assembly Section 4.4).

The EComHR has however clarified that the enhanced right of journalists and other watchdogs to protect their confidential sources of information does not apply when they receive a summons to turn over recordings of assemblies, since no particular secrecy or duty of confidentiality is in play when recordings are made in public.^[19]

15. The right to observe and record assemblies, including law enforcement operations

15.1 Do non-journalists have the same right to record as the press?

15.2 May recordings of assemblies be seized by the authorities?