Abstract

Freedom of expression is one of the fundamental pillars of any democratic society. Freedom of expression and information enables the public to be involved in, and contribute to, democratic decision-making processes. A prerequisite is that citizens have access to the necessary information. Modern society is, however, characterised by an abundance of information. Consequently, there is a great need for actors who actively seek out, collect, and disseminate information to the public on matters of general interest. This task has traditionally been carried out by the press and media outlets, who have held those in power accountable for their actions. Due to the pivotal role of the press as society’s “public watchdog”, the press is afforded a high level of protection with regards to freedom of expression. In case law from the European Court of Human Rights (ECtHR), the Court has recognised that actors other than the press can fulfil the role of society's watchdog. This paper examines the high level of freedom of expression protection afforded to the press and other public watchdogs under Article 10 of the European Convention on Human Rights. In particular, the paper seeks to identify which actors the ECtHR has recognised as society’s watchdogs as well as the relevant criteria for granting this status.

Initially, it is described how the ECtHR granted public watchdogs distinct privileges such as the right to protect sources, enhanced access to information, and the right to dis-Side 13seminate illegal speech. It is then explained how the watchdog concept was developed based on the traditional press. Since then, the ECtHR has granted watchdog status to a wide range of different actors. These include NGOs, researchers, authors of literature, citizen journalists, bloggers, and independent election observers. When the ECtHR considers whether an entity has watchdog status, a functional approach is applied. Thus, the question is not who has watchdog-status, but rather when an entity performs a watchdog function. In answering this question, the ECtHR has been guided by various factors. The key factors are that a watchdog actor is engaged with matters of public interest and disseminates information to the general public. Other relevant factors include whether the actor has conducted an editorial process prior to publication, whether the actor acts independently of state and private interests, and whether the actor has previously assumed the public watchdog role. Even though, in cases concerning traditional media actors or NGOs, the ECtHR seems to apply a presumption of watchdog status, it should be emphasised that the ECtHR will always carry out a holistic assessment considering the particular facts of each case.

Generally, the ECtHR does not distinguish between different types of watchdog actors when it comes to granting them privileges. This is not to say that there will be no differences in the level of protection afforded to watchdog actors. However, such differences do not stem from the watchdog category an actor belongs to, but rather from the fact that certain activities deserve a higher level of protection. The paper also accounts for the distinct duties and responsibilities developed by the ECtHR for watchdog actors. Generally, these duties require watchdog entities to act in good faith on a correct factual basis, to provide accurate and reliable information.

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The paper concludes by comparing its findings with Danish law. First, the paper identifies areas of Danish law where it will be relevant to consider the ECtHR’s case law on public watchdog actors. Second, the paper aims to detect deficiencies in the Danish legal regime with a view to discuss possible legislative changes. In this context, certain amendments to the current Danish legal framework are proposed.

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