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UN tribunal adopts reporter's privilege in win for world media

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  1. Libel and Privacy

    NMU         THE HAGUE         Libel         Dec 11, 2002    

UN tribunal adopts reporter’s privilege in win for world media

  • A former Washington Post reporter prevailed in his appeal of a landmark case establishing strong protection against compelled testimony for war correspondents.

In a case that has been watched closely by media groups around the globe, the appeals court of the United Nations International Criminal Tribunal decided Dec.11 that a qualified reporter’s privilege will be applied to protect war correspondents from being forced to provide evidence in prosecutions before the tribunal.

The court decided that a subpoena may be issued to a war correspondent only if the evidence sought is of direct and important value in determining a core issue in the case, and the evidence cannot reasonably be obtained elsewhere.

The ruling is a win for former Washington Post reporter Jonathan Randal, who brought the appeal after a trial court ordered him to comply with a subpoena to appear as a witness before the court.

The subpoena sought Randal’s testimony in the prosecution of former Bosnian Serb Deputy Prime Minister Radoslav Brdjanin, who is on trial for genocide and deportation of non-Serbs during the 1992-95 Bosnian war. Randal was subpoenaed because he interviewed Brdjanin for a story published in 1993.

The decision by the appeals court recognized that subpoenas to war correspondents can jeopardize the independence and safety of journalists who cover conflict zones.

The court, adopting arguments made by Randal and the more than 30 news organizations who submitted a friend-of-the-court brief in the case, said: “If war correspondents were to be perceived as potential witnesses for the Prosecution, two consequences may follow: First, they may have difficulties in gathering significant information because the interviewed persons, particularly those committing human rights violations, may talk less freely with them and may deny them access to conflict zones. Second, war correspondents may shift from being observers of those committing human rights violations to being their targets, thereby putting their own lives at risk.”

Floyd Abrams, who represented the international amici group and argued before the appeals court in October 2002, called the ruling a “very serious and sophisticated opinion by a learned court.”

He said the case represents a “real breakthrough” in the international fight to protect journalists. It is likely the tribunal’s decision will serve as precedent for other courts tackling the issue of the reporter’s privilege, including courts in the United States, according to Abrams.

The case will now go back to the trial court, which will determine whether Randal must testify, under the new rule established by the appeals court.

(Prosecutor v. Radoslav Brdjanin; Media amici counsel: Floyd Abrams, Cahill Gordon & Reindel, New York, N.Y.) WT

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