October 13, 2016

RSF concerned about “conduct code” for covering terrorist attacks by broadcasting media

Reporters Without Borders (RSF) is worried about the “code of good conduct for broadcast coverage of terrorist actions” that France’s Higher Council for Broadcasting (CSA) was instructed to draft by the law adopted on 21 July extending the state of emergency in France. After participating in a consultative meeting organized by the CSA, RSF has serious reservations about this “good conduct code”, as regards both the way it is being drafted and its usefulness.

Calls for such a code were prompted by cases of questionable reporting on French TV news channels during terrorist acts. BFM, for example, reported live during the HyperCasher kosher supermarket siege in Paris in January 2015 (two days after the Charlie Hebdo massacre) that there were hostages in the supermarket basement. France 2 interviewed a man beside his dead wife’s body immediately after the Nice terror attack on 14 July 2016.

Nothing is so far known about the proposed code’s content or whether it will be obligatory. Its objectives (for example, protecting victims, the presumption of innocence and the work of the police) may be legitimate, but RSF deplores the way it is being drafted. After talking to TV channels, radio stations and other interested parties such as RSF, the CSA has begun to draft it with a view to publishing it by the end of the month.

The CSA said there would be “broad consultation” but it is now drafting the code on its own. There will be no more meetings or consultation during the drafting. There will be no discussion about the first draft, no negotiations with broadcasters about the code’s content.

RSF is appalled that questions of journalistic ethics, media professionalism and editorial freedom are going to be decided for journalists by a government body. The French parliament should have asked a self-regulatory body to work on the drafting of professional guidelines, not a government regulator.

Asking an outside body to draft a “good conduct code” for TV and radio journalists is also tantamount to treating them like children.

Mistakes were made and ill-considered decisions were taken in the heat of the moment but parliament should not have implied that TV and radio newsrooms were not already discussing how to provide more appropriate coverage of terrorist attacks. The public wants to know what is happening at once. And it is in the process of satisfying this demand every day, on a case by case basis, that broadcasters work out the best way to cover events that are shocking for everyone.

Aside from how is drafted, the utility of such a code is also questionable. Either it reiterates existing rules that the CSA is already supposed to enforce, or it tries to impose new obligations on broadcasters, in which case it would have no legal value as the CSA is not empowered to introduce new binding rules in an area – freedom of expression and information – involving fundamental rights.

At the same time, if it is too general, it will be no help in solving specific problems that are usually tackled case by case. And if it is too specific, it could open the way for a kind of a precautionary brake on news reporting that could be the start of a form of preventive censorship.

The code’s content and obligatory nature are both of concern. Even if the CSA identifies it as a kind of “soft law” not intended to impose additional obligations on broadcasters, failure to comply could nonetheless lead to application of all the sanctions at the CSA’s disposal. So, one way or another, it will be binding.

There is a danger that the code’s content could perpetuate practices and behaviour linked to the state of emergency. The code’s creation is part of a series of measures related to combatting terrorism and to the introduction of the state of emergency, but newsrooms will have to continue observing its precautionary rules and restrictions after the state of emergency has been lifted.

There have been events that the authorities have at the time wrongly portrayed as terrorist in nature, and there will probably be more in the future. And when this happens, the code’s precautionary rules and restrictions will also obstruct the efforts of news organizations to establish the truth.

The good conduct code cannot impose restrictions on freedom of expression that add to those that already exist, which are enshrined in French and international law. Freedom of information, the right to inform and be informed, is subject to a very limited number of restrictions. The proposed new CSA code cannot impose additional restrictions without violating one of the most fundamental principles of our democratic system.

RSF will only welcome this code if it is no more than a kind of “handbook” that explains the existing laws to reporters, in the absence of their legal departments, and to relatively inexperienced journalists who suddenly have to cover a major breaking story. As such it would just constitute a reminder or explanation of the law and would have no legal value in itself.