It is in the public debate on the way in which the principle of freedom of expression is exercised that ethical issues and transgressions must be addressed — but not by placing constraints on the principle of freedom of expression, says William Nygaard
The right to freedom of expression is a principle with long historical traditions in Norway. It was codified in the Constitution of 1814, in Article 100, which opened thus: “There shall be freedom to print”. This implied two things: Firstly, that there was a principle that protected the publication of utterances in the public sphere through the then existing communication technology and, secondly, it implied a ban on all forms of censorship prior to publication.
In 2004, Article 100 was revised by the Norwegian Parliament based on a report by a Royal Commission (1996–1999) mandated to propose new wording for the article following a review of all Norwegian legislation pertaining to this principle.
There were two main reasons for amending the article, both of which were cited when the Commission was established. The first reason involved the emergence of more social mobility in a society where many cultures coexist. The other reason was related to the development of new means of communication, not least digital and electronic technologies.
The commission proposed a new opening for Article 100, which was subsequently adopted by Parliament: “There shall be Freedom of Expression”. This wording maintains the ban on prior censorship, while neutralising the principle of freedom of expression technology.
In its report, the Commission emphasised the three classic arguments for freedom of expression which are included in the article: The seeking of truth, the promotion of democracy and the individual’s freedom to form opinions. Restrictions must not impede the three processes from being protected by the principle of freedom of expression. This implies that any limitation on this right cannot be in contradiction to truth, democracy or the autonomy of the individual. Only when all these principles are observed, can restraints be imposed on the right to express oneself freely.
According to the Commission, this implied that the universal principles of freedom of expression were safeguarded and that no group’s interests could be set above those of others. Consequently, the Commission also proposed that the so-called ‘blasphemy article’ in the Norwegian Penal Code be revoked. In this case, Parliament did not follow the recommendation of the Commission.
In all discussion of how to apply the principle of freedom of expression, it is necessary to make a distinction between the principle as a basic human and civil right on the one hand (prescription), and the way it is actually applied on the other (description). It is only when the legal and constitutional limits for freedom of expression have been clarified that the discussion of how to apply these principles can really make headway through a debate in the public sphere through a variety of media and genres.
It is a grave threat to freedom of expression when shifts in social, political, cultural, and religious opinions influence the application of this right through unprincipled criticism of the way freedom of expression is exercised and upheld.
Furthermore, this means that freedom of expression is one thing, while ethical considerations are something else. It is in the public debate on the way in which the principle of freedom of expression is exercised that the ethical issues and transgressions must be addressed, but not by placing constraints on the principle of freedom of expression. Consequently, in Norway, as in many other countries, there is a voluntary ethical regulatory body for the press. It is not a statutory body as it does not deal with legal issues, which are decided by courts of law.
It is in relation to this very important distinction between prescription and description that the issue of what constitutes neo-censorship becomes important. Neo-censorship comes in many guises, but they all relate in one way or another to the post-9/11 situation. Professor Helge Rønning of the University of Oslo was a member of Norway’s Freedom of Expression Committee. He offers the following definitions:
• The type of censorship and control of freedom of expression and freedom of information that ensue from anti-terrorist laws.
• The type of censorship now being increasingly practiced by authorities in many parts of the world in order to safeguard so-called ‘cultural values’, be they Asian, Arabic, etc.
• The type of self-censorship applied by newspapers and publishers for fear of insulting the cultures and religions of others.
• The type of censorship practiced by authorities in relation to racial and religious issues, which often oversteps acceptable boundaries for freedom of expression e.g. the Holocaust – denial, the genocide of the Armenians.
• The type of censorship linked to an increasing application of libel laws against whistleblowers and investigative journalists.
• The curbing of critical voices in organisations, referring to corporate and organisational communication strategies.
I will highlight just a few of these points and then relate them to the issue of multiculturalism
The war against international terror challenges the basic assumptions underpinning constitutional states as they make their efforts to prevent and investigate terrorist acts. The USA is not the only country to adopt anti-terrorist laws. Measures for the surveillance of suspects and wiretaps are constantly discussed in European countries. One recent example from the Nordic countries is from 18 June this year, when the Swedish Parliament (Riksdag) adopted a new Signal Surveillance Act that applies to all cross-border telephone and e-mail communications and requires no judicial safeguards.
Obviously, such a law has several unfortunate aspects:
• It is an infringement of personal integrity and an encroachment on privacy;
• The very possibility of surveillance and the uncertainty associated with it will have a chilling, censorious effect on freedom of expression for private citizens;
• It will challenge the right of the press to protect its sources, and challenge its cross-border contact and collaboration. For example, Norwegian journalists cannot count on their sources remaining anonymous if the State were to decide to apply the Act in the country in question.
• It impairs confidence in genuine protection of sources and could undermine the right of the press to criticise the authorities, which lies at the very heart of freedom of speech and press in our democracies.
The new Swedish law is an astonishing setback for principles that protect freedom of expression, and a sign that changing social conditions are making it far more difficult to deal with freedom of expression, even in a characteristically multicultural and modern society like Sweden. It is tempting to ask whether the USA’s anti-democratic conduct may have conferred legitimacy on the conduct of other countries.
In 2008, the OIC (Organisation of Islamic Conference) completed the first Report on Islamophobia. On behalf of many Arab nations, it concluded that there is an increase in the defamation of Islam and racial intolerance against Muslims in Western societies. Restrictions were advised also with regard to public utterances.
It was Ayatollah Khomeini’s aggressive leadership in Iran that augured the emergence of new antagonisms between parts of the Islamic world and the West. Iran’s new attitudes were expressed in several ways. As far as freedom of expression was concerned, they were rendered visible in February 1989 when a fatwa was declared on Salman Rushdie and others who participated in the distribution of The Satanic Verses.
In Norway, as in other countries, thousands of Muslims demonstrated in an effort to stop The Satanic Verses. In Norway, the publication was expedited in an effort to surprise the public and avoid discomfort. It took place under extensive police protection, which was quite a sensation in itself.
As Norwegian Muslims wanted to respect Norwegian law, and not take the law in their own hands, 25 official Muslim organisations decided to file a lawsuit against the publishing house and publisher, asserting that the book was a breach of the blasphemy article in Norway’s Penal Code, as well as the statutory protection accorded to individuals under the Penal Code.
The case was eventually withdrawn as it was unlikely that it would succeed in leading to a conviction. Notwithstanding, the publication of Rushdie’s novel marked the first time that Norwegian Muslims felt that their private sphere had been insulted in the public space.
Several other specific episodes have provoked Muslims in Norway, as well as in other Western countries. According to the OIC, in 2007 the episodes include the Danish caricatures, remarks made by Pope Benedict XVI, and political statements against Islam made by some Western politicians. One interesting feature of the report is the observation that Muslim countries would like to use the concept of ‘Islamophobia’ in their own self-defence as a correlate to the way in which the State of Israel uses the concept ‘anti-Semitism’.
The impact of cultural relativism is substantial when we see that on 12 February 2008, the Council of Arab Information Ministers passed a charter intended to regulate and control private radio and TV stations by requiring satellite broadcasting not to offend leaders or national and religious symbols in the Arab world, and not harm social harmony, national unity, public order or traditional values. It must conform to the religious and ethical values of Arab society, taking into account its religions, prophets, sects and symbols, and it must protect the Arab identity from the harmful effects of globalisation.
Some consolation may, however, be found in that the Arab Committee for Human Rights (ACHR) immediately issued a strong condemnation of the Charter and expressed its support for the Arab TV channels targeted by the resolution. The ACHR also called on Arab civil society and journalist organisations to ‘actively stand up’ against the policy, which it called an attempt ‘to return the Arab media sector to the era prevailing two decades ago, before the revolution in satellite channels, worldwide web and unlimited media.’
Let us examine what happens when the opposite extreme poses a threat against freedom of expression, that is, when the media, journalists as well as publishers, exercise self-imposed caution in their statements, articles and books in an effort not to insult other cultures and religions.
This is a type of self-censorship on the part of the Western media per se that can pose a threat against freedom of expression and herald a shift in attitudes that could repress important/desirable debate and criticism. This phenomenon must be viewed with the utmost gravity. It is a type of self-discipline triggered by political correctness, cowardice or fear.
One of Norway’s first TV debates about the caricatures included Norway’s leading political caricaturist, an artist and a leading international figure in his field. He acknowledged in a shockingly open manner that when working with Muslim themes in particular, he engaged in self-censorship with a view to what he delineates with his acidic pen. He emphasised that he wanted to avoid taking life-threatening risks.
By way of conclusion, as a publisher, I would emphasise that every journalist and publisher shares a crucial social responsibility for the functioning of freedom of expression in a democracy, both in terms of legitimising the principle of freedom and of its compassionate application.
For us, the requirement for financial returns must not be a goal in itself, but a means for achieving the overall goal of a smoothly functioning democratic society. This task must be addressed in earnest.
William Nygaard is chief publisher of Norway’s Aschehoug publishing house and a former chairman of the Norwegian Publishers Association. After Aschehoug published The Satanic Verses in Norway in 1989 he was shot and left for dead outside his home. He was speaking at a conference on Neo-Censorship to mark the Amsterdam World Book Capital / International Publishers Association 2008 IPA Freedom to Publish Prize in September 2008
