5 legal facts journalists should know about digital communication

Legal standards vary, are often only applicable in a national jurisdiction, and do not necessarily follow international standards. Some states also may guarantee rights on paper, but do not respect them due to a lack of a real division of power with an independent legal system. Journalists, therefore, should not simply rely on their rights, but should be aware of how capable their governments are to violate them.

1. Right to freedom of expression and right to privacy

Both the right to freedom of expression as well as the right to privacy are human rights, which are outlined in the Universal Declaration of Human Rights (UDHR):

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” – Article 12, UDHR
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” – Article 19, UDHR

Nation states should respect these rights and guarantee it through incorporating it in their national constitutions. However, journalists should keep two limitations in mind: Firstly, the Universal Declaration of Human Rights is a so-called soft law, which means that people cannot directly refer to it in court. Hard law is mostly made by nation states. Secondly, an interference with human rights can be justified by law to follow a legitimate aim. This can be protection of other people’s rights, national security, public safety, prevention of a crime or protection of someone’s wellbeing. The interference has to be defined by law, proportionate to the legitimate aim and necessary in a democratic society.

2. “Offline laws” might be applicable to the online world

As the internet is (at least for some states) still relatively new, some areas are not fully regulated yet. Also, the internet allows people to constantly develop emerging technologies, and states will always be a little bit “behind”. However, if something is not regulated, it does not automatically mean that it cannot be criminalised. Governments mostly argue that “the rules of the offline world also need be applicable to the online world.” They can be creative in arguing that the media has committed “crimes” on the internet or while using digital technologies – for example: encryption.

That is why journalists should use new tools with a professional sense of caution and check in advance if, for example, the use of an emerging feature can be considered a crime in their country – can it, in the end, cause more harm than benefit?

3. Targeted versus mass surveillance

4. Legal right to encryption vs. legal prohibition of encryption

5. Cooperation between companies and states

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