Two court rulings which have found that, in accordance with legislation, journalists must ask the prosecutor's office for permission to disclose the circumstances of pre-trial proceedings, have created an oppressive situation for the media in Estonia in 2022, Urmo Soonvald, editor-in-chief of portal Delfi and daily Eesti Päevaleht (EPL), told ERR in an interview with ERR's Marko Tooming which follows in is entirety.
On Tuesday, Tallinn Circuit Court annulled the fines imposed on investigative weekly Eesti Ekspress and two of its journalists in the first instance, for unauthorized disclosure of the facts of pre-trial proceedings, but ruled that permission should still be sought from the prosecutor's office before disclosure.
Mari Männiko, a lawyer at Ekspress Meedia, said on Tuesday that there was no reason for journalists to appeal the decision, as all their applications were upheld, i.e. their fines were quashed.
Responding to the ERR's questions, Soonvald noted that although appealing the decision and going to the Supreme Court would set a precedent, it would probably be a better solution for the media houses and the prosecutor's office to agree on the rules of the game.
The Ekspress Meedia's lawyer's assessment of the decision was that it had been rather satisfactory. What is your assessment of the court's decision, as the content manager (Ekspress Meedia owns Eesti Ekspress, EPL and Delfi – ed.)?
I am haunted by the sentence: "Journalists will have to seek permission from the prosecutor's office in the future". Why? This sentence limits the work, courage and thinking of journalists. An institution (of the prosecutor's office - ed.) which has the last word on every editorial and journalist has emerged. It is unexpected to read the phrase, unequivocally and robustly, about the interference of a legally correct censor in the work of journalists in one of the countries with the freest media in the world.
It is as if it has been forgotten that freedom of the media has helped Estonia stand out from the lion's share of other Central and Eastern European countries in terms of the strength of its democracy, the development of civil society and economic success.
Certainly, it is also worth bearing in mind that the court makes decisions only on the basis of the law, while Supreme Court precedent also denotes journalists as non-procedural persons.
To date, journalists have not been penalized under this provision, and this should also be read in the regulation clarifying when, and by whom, this provision may be exercised and when the prosecution may refuse to disclose data. Whether such a provision is necessary for the protection of criminal proceedings is a matter for legislative discussion, and is unlikely to be resolved by a court order.
According to Ekspress Meedia's counsel, there is no reason to appeal the ruling. In your opinion, what should happen next – for example, do you expect the prosecutor's office to appeal the decision, since this would give you the opportunity to take it to the Supreme Court and have the matter finally settled there?
The Supreme Court would help set a precedent. Would this decision also be pleasant and useful for the Estonian press and democracy?
I believe that the solution lies elsewhere. Most of all, the capacity of all sides to set aside their emotions and to come to understand that the media is nobody's enemy, and when it is critical of any person or institution, it is rightly so.
In my opinion, it is an emotional crime to accuse a journalist of being informed and professional. I emphasize that the Supreme Court has in previous practice recognized the role of a journalist as a person outside the proceedings.
It is likely necessary to pick a suitable moment to sit down at the prosecutor's office, with the media houses and also the media firms' associations, and agree on the rules of the game in respect of each other. This, of course, does not rule out similar disputes happening in the future.
How do you assess one aspect of the verdict, whereby a journalist has to ask permission from the public prosecutor's office, which is a public body, in order to publish news? While the prosecutor's office ruled contra-wise in its commentary on Tuesday, can't this be considered an interference with press freedoms and editorial work?
This is unpleasant, and it subconsciously inhibits journalists; such an approach is not suitable for Estonia or for Europe, in 2022. It is undoubtedly a section of law which oppresses the media, amplifies the prosecution and keeps the atmosphere a tense one. This situation is unsustainable and this worry should be taken off the heads of journalists and of Estonian democracy.
The key is a balanced exercise of rights and obligations and this, in order to be a right, would include that the prohibition of publication not be abused and a possibility be in place for decisions refusing access to be challenged.
Doesn't a situation where everyone agrees that a journalist can and should be fined lead to the cynical position where a media house or publisher knows that a fine will cost a thousand euros, and so decides that this amount can be paid after the fact? Would you, as editor-in-chief, make that decision?
This would be a stupid game and a mockery of the Estonian legal system. However, if there is such a moment and such a situation, I would not rule out such behavior. But cui bono? It would already call to my mind a circus which devalues all parties. There are probably some solutions which won't embarrass anyone.
Do you think that a law which allows journalists to be fined should be amended?
Yes, this needs to change and Ekspress Meedia intends to raise this issue with the media businesses association as well. But first, more in-depth analysis is required. Restrictions on the media also exist in other European countries, and the European Court of Human Rights also recognizes possible scenarios where the freedom of the press can be restricted.
Editor: Andrew Whyte