For the purposes of this article, licensing of journalists is understood to mean a system whereby individuals are required to apply to an external authority for permission to practice journalism, which permission may be refused or revoked. Closely related to licensing are regimes whereby journalists are required to belong to a certain professional association, such as a journalists’ syndicate, and where such associations may refuse or revoke membership.
In some countries, the law places certain minimum conditions on who may practice journalism, such as minimum age or training criteria, or citizenship requirements.
Formally, this is not licensing as it does not involve the possibility of permission to practice journalism being refused or revoked. However, where the conditions go beyond the purely technical, for example by removing the right to practice journalism upon conviction for criminal defamation, this system starts to reflect some of the key problems associated with licensing.
Accreditation, on the other hand, is quite different from licensing, although the two are sometimes confused. Accreditation involves the granting of special privileges, most commonly access to restricted areas such as legislatures and courts, to journalists on the basis that they will inform the wider public about these proceedings. Where accreditation is abused on political grounds, for example to deny access to critical or independent journalists, it can take on some of the negative features of licensing. The general question of whether it is legitimate to ban someone from the practice of journalism was addressed early on by the European Commission of Human Rights in the case of De Becker v. Belgium (January 8, 1960, Application No. 214/56). De Becker had been convicted of collaborating with the German authorities during World War II in his role as editor of a Belgian daily. His death sentence was commuted and he was released from prison, but a ban on him exercising certain rights, including working as a journalist, remained in effect for life. De Becker challenged this ban on the basis that it breached his right to freedom of expression. The commission held that the ban on de Becker breached his right to freedom of expression because it was inflexible and permanent. Although the commission did not entirely rule out the possibility of a ban, the decision has to be understood in light of the extreme circumstances of the case, namely, that de Becker had committed treason while Belgium was at war and under enemy occupation. This suggests that prohibiting access to journalism through a mere licensing system could never be legitimate.
International standards support this view. The main issue in an advisory opinion of the Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (November 13, 1985, Series A. No. 5), was whether or not compulsory membership in a statutory journalists’ association was legitimate. Three arguments were advanced in support of the system. First, public order required such regulation of the profession, which was also “normal” for all professions. Second, membership would promote high professional and ethical standards, supporting the right of the public to receive full and truthful information. Third, compulsory membership would help protect the independence of journalists in relation to their employers. The court accepted that mandatory membership could contribute to public order, understood broadly to include the idea that journalists should “act in good faith and in accordance with the ethical demands of the profession.” However, public order in this broad sense was dependent upon strict respect for freedom of expression, as the court noted: “Freedom of expression constitutes the primary and basic element of the public order of a democratic society . . . It is also in the interest of the democratic public order . . . that the right of each individual to express himself freely and that of society as a whole to receive information be scrupulously respected.” The court concluded that restricting access to the journalistic profession did more harm than good to public order.
In rejecting the argument that all professions are subject to licensing regimes, the court distinguished between journalism and, for example, the practice of law or medicine. In contrast to those of lawyers and doctors, the activities of journalists are specifically protected as a fundamental human right. The court also rejected the argument that the system would promote professional standards and protect the public’s right to be informed. It held, rather, that the public welfare is best served by promoting the “greatest possible amount of information” and that conditioning freedom of expression on the truthfulness or quality of information was open to abuse and “violates the right to information.” The court also found that the goal of protecting media workers against their employers could be accomplished through less intrusive means than restricting access to the profession and, as a result, the licensing scheme could not be justified.
Some national courts have taken a similar point of view. For example, in August 1997, the High Court of Zambia held that any attempt to establish a statutory body to regulate journalists would breach the right to freedom of expression, regardless of the form it took (Kasoma v. Attorney General, August 22, 1997, 95/HP/29/59). The three special mandates for protecting freedom of expression – the UN special rapporteur on freedom of opinion and expression, the OSCE representative on freedom of the media, and the OAS special rapporteur on freedom of expression – adopt a Joint Declaration each year setting out standards relating to important freedom of expression issues. In their Joint Declaration of December 18, 2003, they stated quite clearly: “Individual journalists should not be required to be licensed or to register.”
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