The freedoms of speech and of the press are recognized as fundamental human rights by a number of national, regional, and international legal instruments. In a nation like the United States, it is most aptly captured by the First Amendment, which states that “Congress shall make no law … abridging the freedom of speech, or of the press.” In regions like Europe and Africa, it is captured by pacts like the European Convention on Human Rights (ECHR) and the African Charter on Human and Peoples’ Rights (ACHPR), respectively. Internationally, such rights are protected by pacts like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
However, while such documents provide legal instruments for protecting journalists, they are often enforced in selective ways. Moreover, national laws often supersede broader regional and international agreements in practice, and such laws are shaped by different traditions, norms, and histories, and are designed to deal with competing interests in different ways. Put simply, the legal constraints journalists operate within can vary immensely depending on where the journalist is based.
The freedoms of speech and press are recognized by a variety of legal instruments, such as treaties, conventions, constitutions, statutes, regulations, and judicial precedent. However, the extent of those freedoms, and the ways in which those freedoms are protected, vary immensely depending on where a journalist is operating.
For example, Article 9 of the African Charter on Human and Peoples’ Rights states that “every individual shall have the right to receive information” and “to express and disseminate his opinions within the law.” Yet, restrictions on expressive activities in African countries are common. When Egypt signed on to the ACHPR in 1984, it incorporated some important press freedoms into its legal framework. However, it signed the Charter with the reservation that “the right to receive information” would be confined “to such information as could be obtained within the limits of the Egyptian laws and regulations.” In recent years, Egypt has become one of the top jailers of journalists in the world and has targeted independent and critical news outlets for closure, blocked citizens from accessing a number of news websites, and nationalized a number of large news organizations. Egypt has both passed new, and more restrictive, media laws and violated existing, less restrictive, laws with impunity. Egypt is not alone in this regard. A number of African nations, such as Algeria, Somalia, and Sudan have long histories of censorship and control of speech, even when the targeted activities were protected under its laws.
Africa is hardly alone in this regard, though. In the Americas, Article 13 of the American Convention on Human Rights (ACHR) protects the “freedom to seek, receive, and impart information and ideas of all kinds.” Yet, there is a considerable amount of violence against journalists, criminalization of expression that insults public officials, and the targeting of journalists who reveal sensitive information about government officials and policies. Among the worst offenders in the Americas are Bolivia, Ecuador, and Venezuela. Similarly, signatories to the Arab Charter on Human Rights include Lebanon, whose national laws forbid the publication of news contrary to “national ethics” or “religious feelings,” and Libya, where the targeting of journalists has resulted in many of them being exiled.
In Asia, there are presently no regional guarantees for speech and press, because there is no regional human rights instrument akin to the aforementioned ones. However, international agreements like the Universal Declaration of Human Rights have favorably shaped media laws in many Asian countries, including South Korea and Japan. Nevertheless, those countries still have national security laws that can significantly restrict speech. For example, in South Korea, the national security laws have been used to limit speech that promotes communism. Moreover, in countries like China, Pakistan, and the Philippines, journalists (and citizens) are routinely targeted by the state through legal and extra-legal means because of what they publish.
Notably, journalists working abroad often have to operate under the most restrictive conditions of multiple legal regimes. First, they are governed by the country where they are operating. For example, a Pakistani journalist working in Iran for a British outlet could be detained by Iranian authorities for violating one of its many national security laws in the process of reporting a story. That same journalist, and the outlet they work for, could also be sued in the United Kingdom under that country’s libel laws. And, in their home country of Pakistan, they could be targeted under its anti-blasphemy laws, which could result in their assets (and perhaps even their family members’ assets) being seized. This helps make international reporting a potentially legally risky endeavor.
A helpful resource for assessing the legal risks of reporting from a country is the Reporters Without Borders’ annual World Press Freedom Index. The Index measures more than just legal risk — it also takes into account things like violence against journalists and government transparency — but it proves insightful. Its 2021 Index ranked Norway, Finland, and Sweden as the nations with the best conditions for practicing journalism. In contrast, Turkmenistan, North Korea, and Eritrea had the worst conditions. As a point of comparison, the United States ranked 44th out of the 180 countries evaluated by Reporters Without Borders.
Following a period of general liberalism in press freedoms (i.e., offering stronger protections for journalists and their outlets) at the conclusion of World War II, and then again following the Cold War, there has been a general trend toward more restrictive media laws and more exemptions to existing press freedoms in recent years. This phenomenon appears to cut across all continents, though it has not impacted all countries.
At the heart of this shift has been more stringent national security laws that have criminalized, or increased the penalties for, a range of activities that overlap with journalism. These include activities like revealing information about classified government programs, protecting anonymous sources, and, in some cases, even visiting and interviewing individuals classified as terrorists or enemy combatants.
For example, in 2020, Hong Kong became subjected to a new national security law by the Chinese Standing Committee of the National People’s Congress. The new law criminalized the leaking of “state secrets,” which is a vague term that had been unevenly applied in China to jail journalists. Critics of the law alleged that it could not only be used to go after journalists who engage in critical reporting but that it also promoted self-censorship within Hong Kong. Sure enough, by the end of 2021, more than 100 individuals, including many journalists, were arrested under the law or had their assets seized, and many others flew into exile. This led Reporters Without Borders to allege that press freedom was in a “free fall,” with several (and predominantly pro-democracy) journalistic outlets being shut down in the span of a year.
In similar vein, Australia passed 82 different national security laws between 2001 and 2019. Those laws have been used to justify government raids of both the homes of individual journalists and the newsrooms of major journalistic outlets. Australian journalists have been threatened by senior government officials with prosecution simply for receiving top-secret government documents. The country also passed a highly restrictive defamation law in 2018 that has made it riskier to report on public figures.
More recently, multiple governments have used the so-called “fake news” phenomenon to criminalize certain speech and publication. For example, Singapore’s Protection from Online Falsehoods and Manipulation Act requires companies — including journalistic outlets — to issue corrections or remove content that the government deems false, or face fines in excess of $700,000. Individuals who do not comply can face fines of up to $60,000 or prison for up to 10 years. A central issue with such laws is that the ‘falsity’ of information can be sometimes be subjective, and the arbiters of truth (i.e., the appointed officials who evaluate the information) are hardly objective themselves. Nevertheless, similar laws have been enacted from Egypt to Nicaragua to Thailand to Zimbabwe (among other places) and have been repeatedly enforced selectively against journalists who speak out against political and business leaders.
Finally, the digitization of journalism has also presented important challenges to existing laws that protect journalists. A 2017 UNESCO report found that international media laws were failing keeping up with technology in defining who qualified for special legal protections for journalists. This resulted in journalists working for newer, digital organizations not receiving the protections afforded to their counterparts in traditional media. It similarly resulted in erosions to protections for journalistic sources depending on who interviewed them and how they were interviewed. Thus, not only are media laws in parts of the world becoming more restrictive and being applied unevenly, the scope of legal protections is also being limited by questions about who is a journalist in the modern media environment.
There are national, regional, and international legal instruments that are designed to protect journalists and the broader freedom of expression. However, in many countries around the world, those protections are only applied selectively.
Journalists are often subjected to multiple legal regimes, including frameworks in the country where the journalist operates, the country where their journalistic outlet is based, and the countries in which they may still have assets and familial connections.
Broadly speaking, there has been a recent trend toward more press restrictions around the world, often under the guise of national security and preventing so-called ‘fake news.’ Moreover, the digitization of journalism has led to important legal protections for journalists becoming outdated.