The UN Special Rapporteur on Freedom of Expression and Opinion has strongly stated that the media should not be held legally liable for unlawful statements that they report in the course of election campaigns. This has been a controversial issue in the past, with other international authorities, such as the UN Transitional Authority in Cambodia, taking the contrary view. The assumption that the media may not be prosecuted in a civil or criminal suit for reporting the words of politicians reinforces a trend that was laid down by, among others, the Spanish Constitutional Court. This approach stresses the right of the public to be informed about what politicians say - even if it is unlawful and potentially incites violence. It must be stressed that this is different from a situation in which the media itself deliberately incites violence.
This removal of liability has implications for both news coverage and direct access programmes. It means, for example, that the newspaper or broadcaster may not refuse to run direct access or advertising material from a party on the basis that it may expose the media organ to prosecution. The Constitutional Court in Germany, for example, decided that that was a matter for the courts to decide, not the media. But it is only reasonable to put the media in that position if they are definitely not liable. If a media organ might be prosecuted for the contents of a direct access broadcast, then they must have the right to refuse to run it. However, since that is not a satisfactory position, being clearly open to abuse, the position advocated by the UN Special Rapporteur is clearly the correct one.
