Journalism is often described as the right to inform the public. But before information can be responsibly published, someone has to determine whether it can be verified.
That less visible function of journalism is increasingly important when reporting on courts, public authorities, and institutional decisions. A journalist does not merely transmit official statements. A journalist may also have to ask:
These questions point toward what may be called the epistemic function of journalism: journalism’s role in helping society establish, test, and communicate what can responsibly be known about matters of public concern.
The traditional description of press freedom tends to focus strictly on expression:
But investigative journalism contains an essential earlier stage:
The European Court of Human Rights has recognized that information gathering is an essential preparatory step in journalism and an inherent part of press freedom under Article 10 of the European Convention on Human Rights.
That matters because verification is not simply a professional preference. It is part of the mechanism through which journalism can perform its democratic function.
A journalist who publishes an allegation without checking its documentary basis is doing something fundamentally different from a journalist who obtains the underlying material, examines it, compares it with other records, and then reports what the evidence actually demonstrates.
The difference is not merely stylistic.
It is epistemic.
The term epistemic concerns knowledge: how we know something, what justifies a belief, and what makes an assertion sufficiently reliable to be communicated as fact.
Applied to journalism, the epistemic function can be understood through five basic operations:
This creates an important principle:
Responsible journalism does not begin with publication. It begins with verification.
Modern democratic institutions produce enormous amounts of official information:
But an official document is not necessarily the end of an inquiry. It can itself become an object of journalistic examination.
This does not mean that journalists should presume official records to be false. The opposite principle is more useful:
An official account should be treated as a source to be examined, not as a substitute for examination.
That distinction is fundamental to investigative reporting. The journalist’s task is not to decide in advance that an institution is right or wrong.
Reporting on courts creates an unusual epistemic situation.
The public often receives the final institutional narrative through a judgment, press statement, or other official document. But the underlying evidentiary material may include:
The public account may therefore represent only the visible layer of a much larger evidentiary structure. This creates a fundamental journalistic question:
Can a decision be meaningfully scrutinized if the material on which it depends cannot be independently examined?
That is not an argument that confidential material must always be disclosed. Confidentiality can protect legitimate interests. The question is narrower:
What degree of access is necessary for meaningful verification?
This is where the traditional understanding of press freedom becomes particularly interesting.
Article 10 protects freedom of expression, but the European Court’s case-law also recognizes the importance of information gathering. The Court describes the press as a public watchdog and has repeatedly emphasized the role of journalism in communicating information on matters of public interest.
The Court has also recognized that this watchdog function is not necessarily limited to traditional newspapers. Its Article 10 guidance discusses journalists, NGOs, researchers, academics, bloggers, and other actors performing public-watchdog functions in appropriate circumstances.
The concept therefore has a broader implication:
The democratic value of journalism lies not merely in the existence of a publication. It lies in the process by which information becomes sufficiently reliable to enter public debate.
Consider a simple hypothetical structure:
There are now two possible forms of reporting:
“The institution says X happened.”
This can be accurate as a report of what the institution says. But it does not establish that X actually happened.
“The institution says X happened. The underlying document was examined and shows Y.”
This is fundamentally different journalism. The second form gives the public something more valuable than institutional repetition: an independently examined evidentiary account.
One of the most important distinctions in media law is between:
They are not the same question.
A journalist may seek access to a document for the purpose of verification without necessarily intending to publish the document itself.
For example, an investigator may need to examine an original photograph in order to determine whether a publicly described physical configuration is consistent with the photograph.
The journalistic objective at that stage is not publication.
It is verification.
This distinction matters enormously in disputes involving confidential judicial material.
The question may not initially be:
“Should this photograph be published?”
It may instead be:
“Can this photograph be independently examined?”
That is a different legal and epistemic question.
There is another important distinction.
Requesting access to primary evidence does not necessarily imply that the journalist believes an institution has acted improperly.
It can mean precisely the opposite.
A serious investigator wants to test competing possibilities.
All three are legitimate outcomes of investigation.
The point of independent verification is precisely that the journalist should not decide the result before examining the evidence.
This is why the epistemic function of journalism is closely connected to responsible journalism.
The European Court has repeatedly emphasized that journalists have duties and responsibilities and that Article 10 protection operates alongside standards of responsible journalism and accuracy.
This creates a particularly difficult problem.
Suppose a journalist is told:
“The official record establishes X.”
The journalist asks:
“May I examine the primary evidence?”
And the answer is:
“No.”
At that point the journalist may still report what the institution officially states.
But the journalist cannot honestly represent the underlying proposition as independently verified.
This produces a crucial distinction between:
Those are not interchangeable.
The phrase “public watchdog” is well established in European human-rights jurisprudence.
The European Court has described the press as playing this role because of its function in providing information on matters of public interest. Its current Article 10 guidance also recognizes the importance of information gathering and investigation to journalistic activity.
But a watchdog cannot meaningfully inspect what it is prevented from seeing.
That does not create an absolute right to every document.
It does create a profound institutional question:
What does public scrutiny mean when the material required for scrutiny is inaccessible?
The answer cannot simply be “publication.”
The earlier stages matter:
access → examination → verification → publication
Without the first stages, the final stage can become little more than repetition.
The traditional model can therefore be expanded.
Classical model
Institution → Journalist → Public
Investigative model
Institution → Evidence → Journalist → Verification → Public
Restricted-evidence model
Institution → Evidence → [Access restricted] → Journalist → Public
The third model presents an epistemic problem.
The journalist may be able to report the institution’s position.
But the journalist cannot independently test the evidentiary foundation of that position.
This distinction deserves much more attention in modern media-law scholarship.
Digital journalism has dramatically increased the speed at which information reaches the public.
But speed creates a corresponding risk.
The result is an environment in which verification itself becomes a form of journalistic public service.
The journalist’s value is not necessarily that the journalist knows everything.
It may be that the journalist asks the questions that allow the public to distinguish:
This becomes particularly important when the subject of reporting is itself an institution exercising public power.
The European Court’s Article 10 jurisprudence recognizes the importance of journalistic scrutiny of matters of public interest and has continued to apply the public-watchdog concept in contemporary cases. For example, in Tožičková v. the Czech Republic, the Court described the journalist’s role in reporting on police conduct toward demonstrators as part of the public-watchdog function.
The underlying principle is broader than any individual case:
Public institutions are themselves legitimate subjects of public scrutiny.
That scrutiny does not require hostility.
It requires evidence.
There is an important methodological lesson here.
A journalist does not need to begin by saying:
“The institution is wrong.”
A stronger investigative position may be:
“Here is what the institution says. Here is the underlying material available to us. Here is what that material establishes. Here is what we cannot independently verify. Here is the precise point at which the documentary record ends.”
That is much harder to dismiss.
It also respects the distinction between fact, inference and allegation.
And it allows the reader to participate in the reasoning process.
This is where the theory becomes practical.
Imagine a judicial case in which two photographs are potentially relevant to the public understanding of disputed facts.
The journalist does not initially ask for permission to publish them.
The journalist asks for access so that they can be independently examined.
There are now several possible outcomes.
Access remains unavailable.
Then the correct journalistic conclusion may simply be:
The relevant primary material could not be independently examined.
That statement can itself be important.
It does not accuse anyone of misconduct.
It accurately describes the limits of verification.
This produces perhaps the most important rule for investigative journalism:
Do not collapse different levels of certainty into one statement.
A professional investigation should distinguish at least:
This vocabulary is not bureaucratic.
It is protective.
It protects the reader from being given certainty where the evidence does not justify certainty.
The epistemic function gives us a useful bridge between freedom of expression and access to information.
Freedom of expression protects the communication of information.
But meaningful journalism requires information gathering.
And meaningful investigative journalism requires verification.
Therefore, questions concerning access to primary material can become relevant to the practical exercise of journalistic freedom even before publication occurs.
This does not mean that Article 10 automatically creates a right to every piece of evidence.
The European Court’s jurisprudence is more nuanced than that.
But it does mean that the legal analysis cannot stop at:
“The journalist wants to publish.”
The preceding question may be:
“What does the journalist need to investigate and verify?”
That is the epistemic layer.
This leads to a research question that I think is particularly worth developing:
“Can freedom of expression provide meaningful public scrutiny of judicial institutions when the primary evidence necessary for independent verification is inaccessible?”
That question does not prejudge the answer.
It does not assume misconduct.
It does not assume that confidentiality is unlawful.
It asks about the relationship between three principles:
That is a genuine media-law question.
The value of a case study is not that one person’s experience automatically establishes a general rule.
Its value is that a concrete case can expose a question that can then be tested against law, jurisprudence and comparative practice.
The method should therefore be:
That is how a personal legal dispute can become a serious academic case study without turning the academic work into advocacy.
The deepest function of investigative journalism may not be publication.
It may be verification.
A journalist can transmit what an institution says. But an investigative journalist can also ask whether the documentary record supports the institutional account.
And sometimes it requires saying, plainly:
“This cannot currently be independently verified because the underlying evidence is inaccessible.”
That sentence is not a failure of journalism. It is an epistemic finding.
The public watchdog does not exist merely to speak. It exists to look, examine, test, and then tell the public what the evidence supports.
In an era of institutional records, restricted evidence, digital archives and instantaneous publication, that function may become one of the most important forms of responsible journalism.
The question for modern media law is therefore not only whether journalists are free to publish.
It is also:
“Are journalists able to see enough of the underlying evidence to know what they are responsibly publishing?”
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