Publication of pictures of those who died from the missile strike on Lviv on September 4, as well as photos and videos of the man who had just lost his wife and children, caused a broad public discussion. Apart from radical judgments and emotions, there are quite a few reasonable ideas being voiced: some defend the media’s right to publish such materials, while others call this practice unethical or illegitimate.
The Commission on Journalistic Ethics does not comment on the actions of individual social media users: permission or denial of publication there is determined by the rules of the respective digital platform, and the rest remains up to the views and moral limitations of a specific user. Journalists and media workers, however, are obliged to adhere to the code of professional ethics in their work. Yet, today, when a Ukrainian journalist is not only a journalist but also a citizen of a country affected by aggression, covering Russian war (international) crimes in this format can be controversial.
The Commission on Journalistic Ethics has already published recommendations on covering people’s deaths during the war and on ethical behavior of a journalist while interviewing people who suffered trauma. In regular situations, while covering people’s deaths, there should be complete adherence to clause 3 of the Ethics Code of the Ukrainian Journalist states: “A journalist must treat a person’s private life with respect.” In the situation with the victims from Lviv, clause 18 is also important: “A journalist must exercise caution while covering issues related to minors.”
When a journalist is documenting the aftermath of Russian missile strikes or other crimes, and deciding how to convey information about those events to an audience, the intention to cover the story fully, exhaustively, and truthfully may outweigh privacy considerations. In some cases, compliance with all the formalities — obtaining consent for publication from survivors or from relatives and loved ones of the victims — makes it impossible to provide high-quality and timely coverage of such events. In such cases, journalists and editors make the decision to show something they would not under regular circumstances.
If a person affected by Russia’s crimes refuses to have their words, pictures, or videos published or asks to remove something that has already been published, their request must be fulfilled. This does not apply to the facts and observations of the journalist who visited the scene.
Journalists should refrain from graphic portrayals or gruesome details that may traumatize both the victim’s or the survivor’s loved ones and a regular reader, viewer, or listener. Publication of such materials is permissible only if they are absolutely necessary to reflect the full picture. It is important to prevent the situation when publication of depictions of cruelty, grieving relatives, and other such materials becomes a regular practice for the media or a ploy to catch the audience’s interest.
From the legal standpoint, one of the most important categories is public interest in the published photographic materials. Indeed, most pictures were taken in public places; according to the Civil Code, this does not require consent of the depicted individual unless the latter directly objects to being filmed. This situation may also fall under the journalistic exception to the processing of personal data without consent, established by the Law of Ukraine “On the Protection of Personal Data.” Similarly, it can be assumed that the emotional state of the survivor would hardly allow them to perceive the surrounding reality normally and object to being filmed. Thus, the problem is primarily tied to publishing photos.
Regarding the assessment of how the privacy of people in the pictures is balanced with the freedom of speech of the media, the European Court of Human Rights has developed a list of criteria for national courts to analyze such publications:
- contribution to a discussion of public interest;
- how famous the depicted person is;
- how the depicted person behaved before the publication;
- the circumstances of the photo, the method of obtaining information and its reliability;
- content, form, and consequences of the publication.
The published pictures were mainly related to three aspects: pictures from the site of an international crime, collages of archival photos of the victims, and pictures from their funeral. It should be also noted that family members depicted in them were not famous and were not considered public figures, who can have lower privacy limits due to their role in the public life.
Photos from the first category would most likely pass the public interest test, since their purpose is to document a crime committed by the Russian army, which led to deaths of civilians and significant destruction. However, even in this case, it is advisable to restrict graphic depictions of cruelty, particularly showing dead children without using techniques such as blurring; such photos may violate the requirements regarding protection of the audience from harmful content and entail negative consequences for the media, particularly in the form of sanctions from the media regulator.
Photos from the second category were an illustration to provide contrast between the existence of a happy family and their immediate death from the shelling. While this angle is understandable, journalists should keep in mind that such publications may lead to undesirable attention to survivors in the future.
The third category of photos requires particular caution. Media interference, particularly close-up shots of the man who survived during the shelling, is excessive from the legal standpoint Even if people in a difficult psychological state consent to being filmed and to publication of materials, not necessarily being aware of their actions, portrayal of suffering usually serves only one function — to meet the interest of information consumers in emotional scenes. In the case about the publication of photos of a Latvian lawyer after childbirth, the European Court of Human Rights emphasized that the vulnerable state of the depicted person is a significant factor in analyzing public interest in the publication of her pictures. Similarly, while saying goodbye to his family, the man was undoubtedly vulnerable, and this publication therefore hardly served the interests of journalism.
The remaining criteria are analyzed individually for each media outlet, considering its impact and audience. The use of special equipment to create such images (covert filming, optical zoom etc.) can also be considered. But the key issue is still to prove the public interest in the material.
When a journalist covers the consequences of Russia’s actions, their interest must be not to tug at the audience’s heartstrings and cause a reaction, but to cover the events fully and accurately. Sympathizing with people’s grief is normal, but journalistic materials should refrain from judgments, subjective interpretations, and incitement of emotion. It is best when the facts speak for themselves, and the comments belong to the newsmakers and witnesses of the event, not the journalist.
It should be kept in mind that documenting and covering Russia’s war crimes are vastly different things. Not all materials where the consequences and witness accounts are documented should be immediately published in the media. They can be handed over to organizations that document war crimes professionally, such as the War Crimes Documentation Center, Ukrainian Helsinki Human Rights Union, the Center of Civil Liberties, the Tribunal for Putin Initiative etc. To do it more effectively, it is best to take training on recording of international crimes or to read recommendations about this (e.g., here or here).
These recommendations were developed within the project by the Commission on Journalistic Ethics with the support of UNESCO and the people of Japan. The authors bear the sole responsibility for the selection and presentation of facts contained herein and for the opinions expressed herein, which do not necessarily belong to UNESCO and do not impose any obligations on the Organization.