An extract from The Media and Entertainment Law Review, Edition 2

Free speech and media freedom

i Protected forms of expression

At the national level, the right to freedom of expression is enshrined in Article 100 of the Constitution. The Constitutional Court of Latvia has concluded that the term freedom of expression includes the term freedom of the press (in its wider definition) and the right of the public to receive information. This right covers, inter alia, the right of citizens to choose the language in which they would like to receive information or express their opinion, as well as the right to pre-election campaigning.

However, this right is not absolute. Article 116 of the Constitution, interpreted in light of Article 10 of the European Convention on Human Rights, stipulates that these rights may be subject to restrictions in circumstances provided for by law to protect specific legitimate interests.

Hate speech is absolutely excluded from protection under Article 100. The punishment for triggering national, ethnic or racial hatred can include imprisonment for a period of three to 10 years. Zero tolerance towards hate speech was highlighted by an NEMMC decision of 31 January 2019, which suspended the retransmission of Russian-language channel Rossija RTR for three months. The decision was based on hostile statements against some Ukrainian nationals and the calls of Vladimir Zhirinovsky, a Russian politician, for military action against the territory of Ukraine.

In other cases, such as infringement of privacy, the colliding principles of freedom of expression and right to privacy must be balanced by a journalist before the publication of an infringing article, and by the court, if it needs to evaluate the case.

Commercial speech receives less protection. Here the regulations of the Law on Advertising (1999) and the Unfair Commercial Practices Prohibition Law (2007) (regarding business-to-customer advertising) apply.

ii Newsgathering

The Press Law states that a journalist has the right to gather information by any method not prohibited by law and from any source of information not prohibited by law.

First, this statement means that the privilege of newsgathering is reserved specifically to journalists – persons who, in accordance with the institutional legal framework provided by the law, prepare materials for a mass medium and who have entered into an employment contract or perform such work upon the instruction of a mass medium, or are members of the Journalists' Union. Second, the law does not specify what journalistic methods, experiments and technical equipment are permitted or prohibited. However, any action must be proportionate to the privacy, data protection and public interest of an individual. Additionally, a journalist must take into consideration the prohibitions stated in the Criminal Law, such as the prohibition to illegally open or destroy mail.

It has been recognised that a journalist may use hidden camera or audio recordings if:

  1. an issue is of public interest;
  2. this is the last resort and it is not possible to obtain the information otherwise; or
  3. the journalist respects ethics; for example, by masking the interviewee's face or changing his or her voice by technical means.

Journalists may enter private property without permission only if they have reasonable suspicion of illegal activity. In private property, the procedures for taking photographs or filming should normally be determined by the owner or legal user of the equipment.

The use of drones is regulated by Cabinet regulations. It is essential that flights do not endanger human life, health, privacy or property, the environment or the interests of national security. In certain situations, permission to use drones is needed.

In terms of balancing the need to gather news with the duty to respect others' rights, a 2013 decision by the Supreme Court is considered important. In that case, a photographer took photos in an Orthodox church during the baptism of a child, and publicised these photos in a newspaper with a circulation of 60,000. The Court decided that the journalist violated the law and the code of ethics, taking into account that the church specifically prohibits the media from intruding on ceremonies.

There has recently been a debate on journalists' rights to gather personal data under the General Data Protection Regulation (GDPR). Even though Article 32 of the Personal Data Processing Law (2018) states journalistic work as one of the examples from the GDPR, the lack of understanding of the norms has led to some misunderstandings, such as prohibitions on journalists from taking photos at public events.

iii Freedom of access to government information

The Press Law provides the media with the privilege to receive information from national and public organisations. It is obligatory for state officials to provide this information unless it falls under the scope of information not to be published as defined in the Law.

The Law states that the press cannot publish (and, therefore, neither receive) the following information:

  1. state secrets or any other secrets explicitly protected by law;
  2. materials from pretrial investigations without the written permission of the prosecutor or an investigator;
  3. the content of written correspondence or telephone calls without the consent of the person who received the message and the author of the message;
  4. information that injures the honour and dignity of natural persons and legal persons or slanders them;
  5. information concerning the state of health of citizens, unless they have provided their consent; and
  6. business secrets and patent secrets, unless their owners have provided consent.

In a 2019 case, the Supreme Court dealt with the question of the rights of a journalist to receive information about the state budget and its use. The journalist had asked a local municipality to provide data about the use of financial resources in one of its foundations. The municipality refused to provide the requested information, justifying its conduct with confidentiality requirements. The Court emphasised that journalists have a 'great and fundamental impact' since society receives information about matters relevant to each individual from and through the media. Inter alia, the media must give citizens a chance to follow the state's fulfilment of its public functions and how it deals with public funds. Therefore, this information had to be disclosed.

Amendments to the Criminal Procedure Law (Article 3751) were made to clarify journalists' rights to obtain information from the materials of a criminal case. These amendments provide that journalists may obtain material from criminal proceedings after a reasoned request, but only if this is necessary for public interest. Journalists may analyse material only after the criminal proceedings have concluded.

iv Protection of sources

The Constitution of Latvia does not explicitly recognise the right to source protection. However, this privilege is provided in Article 22 of the Press Law, which states that 'A mass medium may choose to not indicate the source of information . . . For the purpose of protecting vital interests of other persons or the public, only a court, in accordance with the principle of proportionality, may request to produce the source of information.' Additionally, Paragraph 1 of Article 154 of the Criminal Procedure Law indicates a broader understanding of the right to source protection, applying it not only to the mass media but also to journalists and editors. The state authorities are prohibited from arbitrarily interfering with human rights when conducting criminal proceedings. The right to source protection may be restricted only according to the law.

Domestic courts case law also shows that journalists themselves may directly rely on Article 22 of the Press Law and claim the right to source protection. However, Latvian law does not provide the right to source protection to persons who are not considered journalists (i.e., those who do not fall under the scope of the institutional definition (see Section III.ii)).

One of the most prominent European Court of Human Rights (ECHR) cases dealing with journalists' rights to the protection of sources, where the state police had overstepped its borders – the Nagla case – comes from Latvia. However, this situation should not be seen as a norm, but rather an isolated misunderstanding, as there have been no similar matters in recent years.

In 2017, the head of the Corruption Prevention and Combatting Bureau wanted to access information acquired by a Latvian magazine; however, the Journalists' Association condemned this action.

v Private action against publication

Latvian law provides civil remedies against the publishers of unlawful content. While protection against defamation and privacy breaches is provided in the Civil Law (1992), the protection of trade secrets is regulated according to the Law On Trade Secret Protection (2019).

Protection against defamation is enjoyed not only by natural persons but also by legal entities. The circumstance that information is false itself is not sufficient for commencing defamation proceedings, and the attitude and actions taken since the first appearance of the information in question are also taken into account. The remedies offered by the Civil Law are withdrawal of information and payment of non-pecuniary damages. If the content is disseminated by mass media, actions for withdrawal of information must be brought against the disseminator of the information, not the source providing it.

Defamation is also punishable as a crime under Article 157 of the Criminal Law. Usually, the author him or herself can be held liable for the defamatory content. The only exception is when there is adequate proof of a publisher's intent to harm reputation.

Regarding trade secrets, the court emphasises the responsibilities of the operators themselves to take reasonable steps for protecting secrets and preventing their disclosure. Although detailed argumentation is required, the court holds the right to decide whether information should not be considered and protected as a trade secret.

vi Government action against publication

In recent years, there have not been any publicly discussed cases regarding governmental attempts to suppress publications or retaliate against journalists. Article 4 of the Press Law prohibits any interference in the operations of the mass media.

However, the concerns of the public arose in May 2019 when the media supervisor, the NEMMC, initiated an administrative case against private channel TV3, arguing that it had breached the duty to distribute only true facts. As this case was initiated as a response to a news broadcast that repeated the criticism expressed by the State Audit Office on the work of the NEMMC itself, it seemed that the NEMMC used the norms of the Law on Electronic Media to take revenge for the criticism expressed against it. After this decision and the motivation underlying it were criticised by several ministers, the NEMMC terminated the proceedings. This situation has led to debates regarding the actions of the NEMMC having a censoring nature and the Council itself being politically influenced.

Nevertheless, not all NEMMC decisions towards the media can be seen as arbitrary.

Some Russian-connected media have expressed an opinion that the prohibition to retransmit the channel Rossija RTR has been censorship; however, this NEMMC decision was taken because of repeated expressions of hate speech.

From another point of view, the government can influence the media without any specific attacks, but rather by inaction (i.e., non-allocation of funds). In 2019, public media, particularly Latvian Radio, announced a financial crisis. Without sufficient budget, investigative work and the creation of new content cannot continue, and there is a risk that the Latvian media sector will start to collapse. Many participants believe this issue must be resolved at the highest political levels.

However, during the covid-19 crisis on the first half of 2020, National Electronic Mass Media Council (NEMMC) has reported the provision of a wide range of financial support for commercial television and media for national minorities. The financial support was aimed towards supporting news and other information broadcasts necessary for raising the awareness of pandemic-related state measures and educate the society on the avoidance of covid-19.