Rule of Law Institute
  Journalistic Diplomacy Rules in Prejudicial Practice

From all the amount of legal conflicts, the cases related to journalistic activities are remarkable for their specificity. It implies both a special category of persons participating in such conflicts and the legal dispute subject. Moreover, this specificity applies to both civil and criminal cases. But if civil cases occurring in connection with journalistic activities have some scientific coverage, similar criminal practice usually does not go beyond publicism interests. Though it is just criminal prosecution that journalists both in Russia and in Belarus tend to mostly suffer from. However, legal conflicts caused by journalistic activities are characterized by relative easiness with which they cross the distinction line between civil and criminal areas. Journalists tend to make equal mistakes at the prejudicial stage, too. One can only be amazed at how frequent and persistent these mistakes are. In fact, time after time journalists tend to find themselves in similar legal traps.

Use letters of inquiry

Serious legal mistakes usually occur when journalists are only preparing their source materials. I can very well understand the professional necessity for receiving the information as soon as possible, but if you are making some critical material and expecting sharp reaction to it, isn't it easier first of all to take care of your own safety? It is not difficult at all. You can, for example, send a letter of inquiry (instead of an oral request) to the organization or to the official about whom the journalistic material is being prepared. If an oral request has no legal force at all, a letter of inquiry can subsequently become a strong argument in favour of your impartiality. And it is not important whether you have received a response to your inquiry or not. A refusal to respond or response unavailability will actually entitle the journalist to use the information he already has. In this case, the reporter's position becomes legally supported by two legal bases at the same time, i.e. by the legislation, regulating mass media status, and by the legislation, establishing the functions of government service and government employees' activities in case they are the object of journalistic concern. It should be kept in mind that government employees, within their competence, are under the obligation to respond and to explain various legal aspects to all the people, not just to journalists. If you have never received a response to your inquiry, be aware that now you've got a real trump: the law was broken by an official who has failed to provide you with the objective information on the matter concerned.

In this connection, judges may get into an interesting legal collision, though the problems of judicial journalism will be discussed below. Referring to the provision that judges should enjoy independence, they usually refuse to make any contacts with media representatives. But at the same time, they come within the civil servants regulations (though they do not very much like to recognize it) hence, all the civil servants' legal duties also apply to them.

In this regard, I would like to mention an indicative criminal suit initiated in connection with the statement of Federal judge Chudova, who detected the attributes of such crimes as court slandering and contempt against judge in the publication of a well known Russian reporter Anna Politkovskaya. Refusal of the judge to contact the reporter as early as at the stage of material preparation has inevitably resulted in harsh criticism in the article. After the article was published, judge Chudova remembered about the necessity to contact press representatives, but for this purpose she used the services of law enforcement agencies. After an investigation lasting many years (!), at the stage of preliminary examination, Politkovskaya was found not guilty, and the case procedure was terminated in the absence of a criminal act. Because of initially wrongful actions of the judge within the given criminal procedure, even linguistic examination was not required. As a result, Federal judge Chudova, by initiating criminal prosecution against the reporter, has made a precedent of limiting the practiced provision on judges' legal exclusiveness.

Check the information and avoid making estimations

One of the most vulnerable legal positions of journalists while preparing and working over the materials is their work with information sources. I am not urging mass media people to disclose their information sources and I know that it is impossible to obtain 100% verified data, but all journalists have to remember that source reference transfers the responsibility for categorical judgments or challenged facts onto the informant. Here it should necessarily be taken into account that a journalist is made answerable only for facts and possible insults, while his own judgments completely remain in his conclusive authority. Indeed, there is a very loose border between these concepts, and to simplify your work, it is desirable to show your stuff to the editorial lawyer in advance. The lawyer cannot influence the text or article or subject orientation; his task is to specify the aspects, which subsequently may become the basis for claims or even prosecution against the journalist. Such preview is necessary, first of all, in case of sharp, critical materials concerning which one could expect discontent and judicial proceedings on the part of characters of the publications. If a potential conflict is envisaged, why should you provide your opponents with arguments, showing your legal illiteracy?

Direct evaluative judgments are often used as targets for making claims. By excluding them, you will not make the information less acute. Let readers, spectators etc. make their own conclusions about the information presented.

Secrecy factor should be taken into account

The journalists working with materials related to state secrets are at extra risk of having unplanned meetings with representatives of law enforcement agencies. A series of criminal trials in Russia on accusation of state secrets disclosure shows the enormous danger this subject poses to journalists. When working with such materials, it is necessary, first of all, to accurately find out the scope of the effective bans and to receive confirmation regarding their limits from the state bodies. These explanations (only in writing) may subsequently become a serious evidence for your defense. Also try to exclude any references to technical documentation and technical parameters. Readers and spectators are not usually interested in such data, and the journalists will not be made answerable for their disclosure. Similarly, as in the case with non-secret materials publishing, claims may be originated by publication of facts, not judgments. On the other hand, such concept as analytical espionage has lately emerged in legal practice. Public prosecutor's office representatives, while speaking to me, defined it as a phenomenon where secrecy factor is present only in author's knowledge, not in the documents used, and it is distributed through promulgation of analytical judgments. In practice, such a difficult explanation is transformed into quite aphoristic formulas. As an example, let us take the passage from the notorious criminal case on Sutyagin accusation: secret information gathering from open sources. But even analytical espionage requires certain conditions-otherwise all the accusations will look absolutely unsubstantiated. And the most important thing is author's professional proximity to the state secret data sources. Otherwise, the author will not have adequate knowledge and skills to perform such analytical work. If you, by your profession, are far from secrecy, all the attempts to accuse you of analytical espionage are either direct lawlessness, or non-realized threats.

Avoid technical details

Apart from secrecy, another traditional stumbling block in legal support of journalists' activities is their coverage of the work of investigating agencies and court. I have already mentioned the indicative criminal case "Federal judge Chudova vs Politkovskaya," but the majority of journalist cases on this subject do not become precedent ones at all. In order not to get involved in a row of superfluous problems, it is necessary to use the precise rules, which are uniform for all the countries of both near and far abroad. Similarly as in the case of problems with documents having a secrecy stamp, while working with court's or investigatory bodies' materials, it is undesirable to "enrich" journalistic investigation with excessive technical data. In practice, this implies lack of references to concrete numbers of case sheets, protocol pages and other formal characteristics. At the same time nobody has the right to prevent you from covering the case in essence and, most important, from evaluating the facts made public. The structure of cases to be considered in closed sessions is firmly fixed by the legislation. However, even here judicial law enforcement bodies have worked out the ways of separating journalists from the information: one or two classified documents are included in any socially significant case, and secrecy is automatically transferred to the whole case. And nobody will care that classified documents usually have no direct relation to the essence of the case. One must be prepared for such situation to be in the position to legally resist it.

First, in most cases there are people (representatives of the parties, lawyers), capable of setting out their view of the situation within their competence without disclosing classified information. Second, despite the fact that the case is classified, you may request from competent authorities any information on the case beyond the limits of the data, constituting state or any other secrets. In this case, the given bodies assume the same obligations, as in case of any other inquiry (they are obliged to respond to any inquiry, see above). The data received will be legalized to make them public or, at least, the responsibility for their distribution will be transferred to the information source. In fact, this method has not been properly tested by journalists yet. Usually they prefer only the first variant, i.e. interrogation of various participants in the case, and in the course of it many journalists commit a legal error.

Trying to speed up the process of information obtaining and sometimes even to correct it, some journalists are simultaneously working with people of various legal statuses. In no event it is allowed to bring together case participants having different statuses until they have given their evidence. Otherwise you may be accused of putting pressure upon investigation bodies, court, witnesses and other persons.

Similar caution should be exercised in case of your own materials about acute legal conflicts. In this case you are free in your evaluations, but try to avoid giving recommendations (except for the most general ones) and issuing concrete instructions to case participants.

Use correct formulations

Coverage of publicly important cases poses legal threats to journalists, and sometimes it is very difficult to resist the temptation to establish the guilt of those or other persons. If in simple cases correct formulations are applied: "accused of theft," "accused of murder," "suspected of economic abuse," etc., as soon as a legal conflict involves public agitation, the veil of correctness falls down. For example, when I was a counsel for the defense in the first terrorist cases in Russia, very few journalists were resisting the temptation to call the accused as terrorists. Subsequently, however, the accusation of such a heavy deed was taken off from all of them. The people, who went at large, had the full right, if they wished, to bring an action against the press representatives who were too quick to pronounce the sentence.

Relations of the press with one of the Nord-Ost hostages, Yakha Neserkhoeva, were even more dramatic. While she was in the hospital and in the isolation ward until all the circumstances were clarified, several articles were published. Those publications not only maintained that she was a terrorist, but also published her photo; there were various stories about shahid belts, hexogen traces and also about an elderly woman who had unmasked a dangerous terrorist, etc. After Yakha Neserkhoeva went at large and was found a victim, both her relatives and I had to hide all these articles from her not to still more hurt the person being in the hardest post-stressful condition. Journalism is a too serious weapon to use it so unscrupulously. However, there are not so many cases of this sort fortunately.

Examination of texts is necessary

In daily practice, the most favorite aspect of legal claims to journalists is their accusation of slander distribution. Perhaps, such claims can be regarded as "professional" accusation. If you assume that your journalistic investigation will result in such consequences, try to make legal expertise and linguistic examination of your materials beforehand. Examinations never are superfluous. Even if afterwards at someone's initiative another examination is performed and its conclusions are unfavorable for you, this will result in another commission examination. Certainly, it should be initiated if you are confident of your innocence and do not doubt due experts' professionalism. When these conditions are observed, a pre-prepared examination, after all, proves solidity of your legal position.

Find out the essence of claims

Another necessary element of journalistic prejudicial diplomacy is exact definition of claims, as far as their legal essence is concerned. Usually the party, which considers itself slandered and offended, is dissatisfied with journalistic work in general. Nothing prevents you from trying (better—officially) to find out the concrete aspects of claims from this party. At least you will get a solid legal argument for the fact that you have initiated the dispute settlement process (whether your attempt was a success or not—it will be the question to the other party). If the offended persons react to your inquiries, you will be able to find out how serious and how well prepared their claims are. In addition, it is better if the cumulative rage is poured out on you in private correspondence than during the court procedure or in the course of preliminary investigation.

Certainly, there are cases when in view of obvious bias or extreme non-professionalism (and sometimes both at the same time), court employees or investigatory bodies' representatives fail to precisely define the essence of accusations. Take, for example, the official question asked by the investigating expert in the Ryazan slander case against M. Komarov, deputy editor-in-chief of the regional supplement to Novaya Gazeta: "Did Michael Viktorovich Komarov use ulterior speech influence methods, and if yes,—what were those methods and with what purpose were they used?" We can only guess what paranormal abilities must have the expert linguists while studying the newspaper article and what the investigators want to accuse the journalist of. But even such cavalryman-like sudden jurisprudence attacks must receive competent response. Otherwise, the consequences threaten to seriously hit your reputation, nerves, time, financial position and even safety.

Law should be studied

A journalist must not become a lawyer, but he/she should know law within the volumes risky profession workers know the first aid techniques. But in our case this deals with helping yourself. Afterwards, you should address lawyers, better-special legal services for protection of journalist interests, including both lawyers and advocates. As journalism has become the most problem-like trade both in Russia and in Belarus, occurrence of inter-republican associations intended for the performance of this task seems very urgent. But it is you who must render first legal aid to yourself, and the more professional this aid will be, the less problems you may expect while communicating with Themis.

Stanislav Markelov

Source: Bulletins of Center for Journalism in Extreme Situations, Media Expert digest, 2003

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