Freedom of the press

In 2007, an amendment was made to the Personal Data Protection Act in order to better protect the freedom of the press.[1] Pursuant to the draft, personal data may be disclosed for journalistic purposes without the permission of the owner of the data, if there is overriding public interest and the publication corresponds to the principles of journalistic ethics. The primary argument in the case of media representatives was that “such wording allows the press to publish materials related to personal data without registering as a processor of personal data.”[2] The law entered into force on 1 January 2008.[3]

In respect to the topic of freedom of the press, it is important to analyse the activities of the self-regulatory media organisations. There are two—the Estonian Press Council (EPC) and the Estonian Press Council of the Estonian Newspaper Association[j1] .  The cases that deal with constitutional topics and that have resulted in condemnatory decisions or decisions for which positions have been given or statements made[K2]  can broadly be divided as follows:

• Providing misleading information, essentially not providing the opportunity for a rebuttal;
• Damaging a reputation by using an out-of-context photo, refusing to publish clarification;
• Disregarding the principles of journalism, a wish to hinder information getting on the air;
• Institutional restriction of the freedom of speech;
• Presenting accusations without factual proof, slander, labelling;
• Writing articles based on private conversations, factual errors, vulgar language;
• Disparagement of children out of context, causing unfounded suffering.

The existence of two competing self-regulatory organisations may not be the best solution, because it may cause confusion among potential complainants and thereby reduces the efficiency and purposefulness of both organisations.

Epp Lauk, a media critic who has written on the topic of self-regulation, warns that “every attempt at regulation is immediately interpreted as censorship and the endangerment of the freedom of speech.” At the same time, the author finds that it is more dangerous “when media organisations agree to totally muffle some voices in society.”

The freedom of press is also analysed on the Ethics Web created at the University of Tartu. Another important problem is the relationship between bloggers and the press, which has also been raised by several bloggers. Prof. Varul believes that the current regulations should apply in respect to the liability of bloggers, but the peculiarity of the Internet should be considered.[4]

Several important judicial decisions were made in 2007, which associate the freedom of speech, freedom of the press, and the right to privacy. Some of them have reached the highest court. The decision of the Tallinn Circuit Court in the action of V.R. against AS Postimees to overturn erroneous data and publish a correction, as well as the compensation of moral damages along with the publication of an apology was contested in the Supreme Court.[5] The content of the appeal in cassation is the claim that “by publishing incorrect statements, the respondent caused moral damages to the plaintiff by damaging his trustworthiness and reputation as a politician and Minister of the Environment.”[6]

The Supreme Court supported the opinion of the circuit court, by recognising that it had “correctly found that the contents of the articles that include, among other things, legal understandings of the organisation of environmental protection in Estonia and the legal-style understandings of the competence and obligations of state institutions in the exercise of state authority contained in the articles, represent judgements that cannot be overturned on the basis of the provisions that regulate the overturning of incorrect data”. The Supreme Court also found that in the case of value judgements and also legal judgements, even if they rely on incorrect assumptions (factual allegations), one cannot seek to overturn judgements.[7] Although, human rights were not specifically discussed in the court, the court judgment is a determining border post in finding solutions related to the aforementioned topics in Estonia.

From the viewpoint of the freedom of the press, the judgement of the Civil Chamber of the Supreme Court,[8] in which the action of G.G. against the Ekspressi Kirjastuse AS for the publication of a correction, was noteworthy. At first, the Supreme Court confirmed the consistency of its decisions and concordance with the judicial practice of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

“Obligating the publisher of an article to publish a correction is one of the invasions of the freedom of press based on the co-effect of §44 and §45 (of the Constitution), which must be reasoned and proportional. The Supreme Court has previously found that the principle of the  freedom of expression, including the freedom of the press, provided by §45(1) of the Constitution and article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms or the European Human Rights Convention (EHRC)is an indispensible guarantee of the democratic management of society and therefore one of the most important social values (3-1-1-80-97). Guaranteeing the presumption of innocence is the obligation of the state and the local governments and this obligation does not extend in totality to the mutual behaviour of private persons.”[9]

The court also explained the consequences of using incorrect information:

“In and of itself, the respondent’s statement is correct that the plaintiff’s demand to have an incorrect statement of fact overturned is an infringement on the freedom of the press. It is the opinion of the Civil Chamber that obligating the publisher to overturn or correct incorrect information is one of the proportional invasions of the freedom of the press. The freedom of expression (freedom of speech) is contrasted with a person’s personal right not to have incorrect information published about him/her, including the right to honour and a good name. In the current dispute, the courts have ascertained that an incorrect statement about the plaintiff follows from two statements published in the article that are referred to in the action, and therefore, requiring a correction to be published regarding incorrect factual statements is justified. This conclusion is based on §1047(4) of the Law of Obligations Act, according to which the overturning or correcting of the information can be demanded from the person responsible for publishing the information with the cost being borne by the publisher, regardless of whether the publication of the information was unlawful. It is not important whether the statement supports one’s honour and good name. It is only important that the statement is incorrect. This conforms to the second sentence of Constitution §45(1), which allows freedom of speech to be restricted by law, among other things, for the protection of other human rights, including the protection of honour and good name.”[10]

The freedom of the press is important in Estonia as an object of discussion. The searches for a balance between value judgements and fundamental freedoms are substantive and groundbreaking.