Media Freedom in a Pluralist World

Contents

1. Introduction

2. Whistleblowing
2.1. Media Freedom and Whistleblowing
2.2. Legal Protection of Whistleblowers

3. Public Interest Scrutiny

4. Policy Recommendations

5. Bibliography

1. Introduction

Earlier this year, when a list of some 230 Nobel Peace Prize candidates was announced by the Oslo committee, for the first time in over a hundred years of the traditionalized execution of Alfred Nobel’s will, a whistleblower has found his way on the said list: Bradley Manning (Welt 2012). Although the European Union has prominently, and somewhat controversially, received the award (Zeit 2012), the nomination of Manning highlighted the contemporary importance of the phenomenon of whistleblowing. Bradley Manning, a former U.S. Army soldier and intelligence analyst, was arrested in early 2010 on suspicions of having passed classified material on to the whistleblowing-hub Wikileaks (USD-C 2010). Among the documents, Manning is alleged to have leaked, are more than 250,000 U.S. diplomatic cables^[1] (Wikileaks 2011) and more than 500,000 U.S. Army reports^[2] (Wikileaks 2010), exposing them on the international stage leading to controversy about U.S. foreign policy and consequently their handling of whistleblowers. The extreme crackdown by U.S. authorities and the "inhumane" conditions under which Manning was detained (Amnesty International 2011) were exemplary of the force the U.S. Government is willing to employ in order to strike down such misconduct and, perhaps, the greater degree of or different approach to legal protection that needs to be afforded to military and intelligence whistleblowers.

Therefore, the purpose of this term paper is to show why military and intelligence whistleblowers need more legal protection and in particular why the so-called “public interest scrutiny” should be institutionalized. This paper intends to deliver an answer to these questions in the following manner: The first part comprises a summary of the term “whistleblowers” where it will be shown why the protection of whistleblowers is a fundamental element of media freedom in the 21st century. The second part entails a detailed description of the term “public interest scrutiny” and its importance in relation to military and intelligence whistleblowers. The second part will address the questions posed in this paper, i.e. in particular why the “public interest scrutiny” should be institutionalized. At last, the third part will bring forward policy recommendations on the basis of the findings in part one and two, including detailed suggestions about the possibility of institutionalizing “public interest scrutiny”.

The Bradley Manning case, subject to the contextual legal framework of the U.S.A, will lend itself to this terms paper as an exemplary basis to foster and clarify subsequent argumentation. Notwithstanding the specificity of the Manning case, the policy recommendations, which are stated in the third part, should be considered as fundamentally universal, and hence, are addressed to all states.

2. Whistleblowing

In simple terms, a whistleblower is a person that tells the public or someone without appropriate clearance, but nevertheless authority to make public, allegedly dishonest or illegal activities that have occurred, are in the process of occurring or will most likely occur under the auspices of some kind of organization (Yahoo! Education 2009). The term comes from “to blow the whistle” and “its origins may go back 50 years or so and, though obscure, are often traced to the schoolyard or playing field where some authority figure, monitor or referee, acts to stop proceedings with a view to their orderly continuation.” (Jubb 1999, 77).

There are many different definitions of the term “whistleblowing” and they all differ in their extent. For example, Berkowitz, Tusk, Downes and Caroline employ a rather broadly framed definition in a 2011 article titled “Whistleblowing”. They write: “Generally speaking, any time an employee complains of illegal, unethical, or otherwise harmful or inappropriate conduct by an employer, he or she can be said to have engaged in whistleblowing activity.” (Berkowitz/Tusk/Downes/Caroline 2011, 16).

In 1999, however, Peter Jubb, an expert and scholar in the field of “whistleblowing”, already asserted that a narrow definition of the term is necessary in order to promote research on the topic (Jubb 1999, 78 | Near/Miceli 1996, 523). Jubb analyzed many different definitions of the term and from this has produced a definition that is both elaborate and narrow: “Whistleblowing is a deliberate non-obligatory act of disclosure, which gets onto public record and is made by a person who has or had privileged access to data or information of an organization, about non-trivial illegality or other wrongdoing whether actual, suspected or anticipated which implicates and is under the control of that organization, to an external entity having potential to rectify the wrongdoing.”. According to Jubb, whistleblowing features six elements: “the act of disclosing damaging news; the whistleblower agent; a disclosure subject – some (potential) wrongdoing; a target organization held responsible; a disclosure recipient; and an outcome – the disclosure enters the public domain.” (Jubb 1999, 78). However, whistleblowers are more than simple informants; they are an integral aspect indispensable to the freedom of the media in a pluralist society.

2.1. Media Freedom and Whistleblowing

Whistleblowers and any other type of sources are a fundamental part of investigative journalism and therefore the freedom of media. Good journalism has always been heavily dependent on good sources establishing an “inside look”. Therefore it’s no surprise that the OSCE^[3] has repeatedly pointed towards the requisite level of protection that must be afforded to such sources and writes in a 2007 article titled “Access to information by the media” that: “Journalists should not be required to testify in criminal or civil trials or provide information as a witness unless the need is absolutely essential, the information is not available from any other means and there is no likelihood that doing so would endanger future health or well-being of the journalist or restrict their or others ability to obtain information from similar sources in the future.” (OSCE 2007, 13).

But there is another reason as to why whistleblowers are important for the freedom of media: The indispensability of the principle of freedom of information for a pluralist society aiming to respect and foster media freedom; a principle which, unfortunately, most states tend to neglect. For example, while many signatories to the non-binding OSCE charter have transposed their political commitments into passing freedom of information laws within their national jurisdictions, as a matter of fact, most states have left their initial enthusiasm squalid, somewhat reaffirming the phrase “paper doesn’t blush” (OSCE 2007, 2). However, too restrictive classification rules may just as well hinder information from flowing freely (OSCE 2007, 4). Especially in the area of state secrecy, which is usually of public interest, whistleblowers are vital. They help to overcome some all too often confusingly intermingled layers of secrecy and bureaucracy placing the state at the center of public scrutiny encouraging the government to assume some form of responsibility and potentially opening up the possibility of it or its agents to being held accountable.

[...]

^[1] Also known as “Cablegate”

^[2] Also known as “Iraq and Afghanistan War Logs”

^[3] “OSCE” stands for Organization for Security and Co-operation in Europe.