07 Jan 14 | Europe and Central Asia, European Union, News and features, Politics and Society, Religion and Culture
(Photo: Anatolii Stepanov / Demotix)
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
Media concentration in the EU poses a significant challenge. The media in the EU is significantly more concentrated than in North America, even when taking into consideration explanations of population, geographical size and income. Even by global standards, media concentration in the EU is high.
Another challenge arises from national media regulation, which may both fail to protect plurality and, allow an unnecessary and unacceptable amount of political interference in the way the media works. While the EU does not have an explicit competency to intervene in all matters of media plurality and media freedom, it is not neutral in this debate. A number of initiatives are underway to help better promote media freedom, and in particular media plurality. Free expression advocates, including Index, welcome the fact that the EU is taking the issue of media freedom more seriously.
Media regulation
Across the European Union, media regulation is left to the member states to implement, leading to significant variations in the form and level of media regulation. National regulation must comply with member states’ commitments under the European Convention on Human Rights, but this compliance can only be tested through exhaustive court cases. While the European Commission has, in the past, tended to view its competencies in this area as being limited due to the introduction of the Charter of Fundamental Rights into EU primary law, the Commission is looking at its possible role in this area. In part, the Commission is acting upon the guidance of the European Parliament, which has expressed significant concerns over the state of media regulation, and in particular with regard to Hungary, where regulation has been criticised for curtailing freedom of expression.
The national models of media regulation across Europe vary significantly, from models of self-regulation to statutory regulation. These models of regulation can impact negatively on freedom of expression through the application of unnecessary sanctions, the regulator’s lack of independence from politicians and laws that create a burdensome environment for online media. Statutory regulation of the print and broadcast media is increasingly anachronistic, raising questions over how the role of journalist or broadcaster should be defined and resulting in a general and increasing confusion about who should be covered by these regulatory structures, if at all. Frameworks that outline laws on defamation and privacy and provide public interest and opinion defences for all would provide clarify for all content producers. In the majority of countries, the broadcast media is regulated by a statutory regulator (due to a scarcity of analogue frequencies that required arbitration in the past), yet, often, the print media is also regulated by statutory bodies, including in Slovenia, Lithuania, Italy; or regulated by specific print media laws and codes, for example in Austria, France, Sweden and Portugal. As we demonstrate below, many EU member states have systems of media regulation that are overly restrictive and fail to protect freedom of expression.
In many EU member states, the system of media regulation allows excessive state interference in the workings of the media. Hungary’s system of media regulation has been criticised by the Council of Europe, the European Parliament and the OSCE for the excessive control statutory bodies exert over the media. The model of “co-regulation” was set up in 2010 through a new comprehensive media law[1], culminating in the creation of the National Media and Infocommunications Authority, which was given statutory powers to fine media organisations up to €727,000, oversaw regulation of all media including online news websites, and acts as an extra-judicial investigator, jury and judge on public complaints. The president of the Media Authority and all five members of the Media Council were delegated exclusively by Hungary’s Fidesz party, which commanded a majority in Parliament. The law forced media outlets to provide “balanced coverage” and had the power to fine reporters if they didn’t disclose their sources in certain circumstances. Organisations that refused to sign up to the regulator faced exemplary fines of up to €727,000 per breach of the law. While the European Commission managed to negotiate to remove some of the most egregious aspects of the law, nothing was done to rectify the political composition of the media council, the source of the original complaint to the Commission.
Hungary is not the only EU member state where politicians have excessive influence over media regulators. In France, the High Council for Broadcasting (CSA), which regulates TV and radio broadcasting, has nine executives appointed by presidential decree, of which three members are directly chosen and appointed by the president, three by the president of the Senate, and three by the president of the National Assembly. According to the Centre for Media and Communication Studies, this system for appointing authorities has the fewest safeguards from governmental influence in the EU.
Many countries have statutory underpinning of the press, which includes the online press, including Austria, France, Italy, Lithuania, Slovenia and Sweden. Some statutory regulation can provide freedom of expression protections to those who voluntarily register with the regulatory body (for instance in Sweden), but in many instances, the regulatory burden and possibility of fines for online media can chill freedom of expression.
The Leveson Inquiry in the UK was established after the extent of the phone-hacking scandal was discovered, revealing how journalists had hacked the phones of victims of crime and high profile figures. Lord Justice Leveson made a number of recommendations in his report, including the statutory underpinning of an “independent” regulatory body, restrictions to limit contact between senior police officers and the press that could inhibit whistleblowing, and exemplary damages for publishers who remain outside the regulator. Of particular concern was the notion of statutory unpinning by what was claimed to be an “independent” and “voluntary” regulator. By setting out the requirements for what the regulator should achieve in law, it introduced some government and political control over the functioning of the media. Even “light” statutory regulation can be revisited, toughened and potentially abused. Combined with exemplary damages for publishers who remained outside the “voluntary” regulator (damages considered to be in breach of Article 10 of the European Convention of Human Rights by three eminent QCs), the Leveson proposals were damaging to freedom of expression. The situation was compounded by the attempt by a group of Peers in the House of Lords to exert political pressure on the government to regulate the press, potentially sabotaging much-needed reform of the archaic libel laws of England and Wales. This resulted in the government bringing in legislation through the combination of a Royal Charter (the use of the Monarch’s powers to establish a body corporate) and by adding provisions to the Crime and Courts Act (2013) that established the legal basis for exemplary damages. It is arguable that the Leveson proposals have already been used to chill public interest journalism.
In part a response to the dilemma posed by Hungary, but also to wider issues of press regulation raised by the Leveson Inquiry in the UK, vice president of the Commission Neelie Kroes has overseen renewed Commission interest in the area of media regulation. This interest builds upon the possibility of the Commission using new commitments introduced through the Charter of Fundamental Rights into EU primary law, such as Article 11 of the Charter, which states: “The freedom and pluralism of the media shall be respected.” The Commission is now exploring a variety of options to help protect media freedom, including funding the establishment of the Centre for Media Pluralism and Media Freedom and the EU Futures Media Forum. In October 2011, Kroes founded a High Level Group on Media Freedom and Pluralism to look at these issues in more detail. The conclusions were published in January 2013.
Many of the recommendations of the High Level Media Group are useful, in particular the first recommendation: “The EU should be considered competent to act to protect media freedom and pluralism at State level in order to guarantee the substance of the rights granted by the Treaties to EU citizens”. Yet some of the High Level Group’s conclusions do not provide a solution to questions of appropriate legislation within the EU. The group called for all member states to have “independent media councils” that are politically and culturally balanced with a socially diverse membership and have enforcement powers including fines, the power to order printed or broadcast apologies and, particularly concerning, the power to order the removal of (professional) journalistic status.[2] Political balance could be interpreted as political representation on the media councils, when the principle should be that the media is kept free from political interference. This was an issue raised in particular by Hungarian NGOs during the consultation. Also of particular concern is the suggestion that the European Commission should monitor the national media councils with no detail as to how the Commission is held to account, or process for how national media organisations could challenge bad decisions by the Commission. The Commission is awaiting the results of a civil society consultation. Depending on the conclusions of the Commission, stronger protections for media freedom may be considered when a state clearly deviates from established norms.
[1]Act on the Freedom of the Press and the Fundamental Rules on Media Content (the “Press Freedom Act”) and the Media Services and Mass Media Act (or the “Media Act”)
[2] p.7, High Level Media Group on Media Freedom and Pluralism
02 Jan 14 | European Union, News and features, Politics and Society
The law of libel, privacy and national “insult” laws vary across the European Union. In a number of member states, criminal sanctions are still in place and public interest defences are inadequate, curtailing freedom of expression.
The European Union has limited competencies in this area, except in the field of data protection, where it is devising new regulations. Due to the impact on freedom of expression and the functioning of the internal market, the European Commisssion High Level Group on Media Freedom and Pluralism recommended that libel laws be harmonised across the European Union. It remains the case that the European Court of Human Rights is instrumental in defending freedom of expression where the laws of member states fail to do so. Far too often, archaic national laws have been left unreformed and therefore contain provisions that have the potential to chill freedom of expression.
Nearly all EU member states still have not repealed criminal sanctions for defamation – with only Croatia,[1] Cyprus, Ireland, Romania and the UK[2] having done so. The parliamentary assembly of the Council of Europe called on states to repeal criminal sanctions for libel in 2007, as did both the Organization for Security and Co-operation in Europe (OSCE) and UN special rapporteurs on freedom of expression.[3] Criminal defamation laws chill free speech by making it possible for journalists to face jail or a criminal record (which will have a direct impact on their future careers), in connection with their work. Many EU member states have tougher sanctions for criminal libel against politicians than ordinary citizens, even though the European Court of Human Rights ruled in Lingens v. Austria (1986) that:
“The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual.”
Of particular concern is the fact that insult laws remain in place in many EU member states and are enforced – particularly in Poland, Spain, and Greece – even though convictions are regularly overturned by the European Court of Human Rights. Insult to national symbols is also criminalised in Austria, Germany and Poland. Austria has the EU’s strictest laws in this regard, with the penal code criminalising the disparagement of the state and its symbols[4] if malicious insult is perceived by a broad section of the republic. This section of the code also covers the flag and the federal anthem of the state. In November 2013, Spain’s parliament passed draft legislation permitting fines of up to €30,000 for “insulting” the country’s flag. The Council of Europe’s Commissioner for Human Rights, Nils Muiznieks, criticised the proposals stating they were of “serious concern”.
There is a wide variance in the application of civil defamation laws across the EU – with significant differences in defences, costs and damages. Excessive costs and damages in civil defamation and privacy actions is known to chill free expression, as authors fear ruinous litigation, as recognised by the European Court of Human Rights in MGM vs UK.[5] In 2008, Oxford University found huge variants in the costs of defamation actions across the EU, from around €600 (constituting both claimants’ and defendants’ costs) in Cyprus and Bulgaria to in excess of €1,000,000 in Ireland and the UK. Defences for defendants vary widely too: truth as a defence is commonplace across the EU but a stand-alone public interest defence is more limited.
Italy and Germany’s codes provide for responsible journalism defences instead of using a general public interest defence. In contrast, the UK recently introduced a public interest defence that covers journalists, as well as all organisations or individuals that undertake public interest publications, including academics, NGOs, consumer protection groups and bloggers. The burden of proof is primarily on the claimant in many European jurisdictions including Germany, Italy and France, whereas in the UK and Ireland, the burden is more significantly on the defendant, who is required to prove they have not libelled the claimant.
Privacy
Article 8 of the European Convention on Human Rights protects the right to a private life throughout the European Union. [6] The right to freedom of expression and the right to a private right are often complementary rights, in particular in the online sphere. Privacy law is, on the whole, left to EU member states to decide. In a number of EU member states, the right to privacy can restrict the right to freedom of expression because there are limited protections for those who breach the right to privacy for reasons of public interest.
The media’s willingness to report and comment on aspects of people’s private lives, in particular where there is a legitimate public interest, has raised questions over the boundaries of what is public and what is private. In many EU member states, the media’s right to freedom of expression has been overly compromised by the lack of a serious public interest defence in privacy law. This is most clearly illustrated by the fact that some European Union member states offer protection for the private lives of politicians and the powerful, even when publication is in the public interest, in particular in France, Italy and Germany. In Italy, former Prime Minister Silvio Berlusconi used the country’s privacy laws to successfully sue the publisher of Italian magazine Oggi for breach of privacy after the magazine published photographs of the premier at parties where escort girls were allegedly in attendance. Publisher Pino Belleri received a suspended five-month sentence and a €10,000 fine. The set of photographs proved that the premier had used Italian state aircraft for his own private purposes, in breach of the law. Even though there was a clear public interest, the Italian Public Prosecutor’s Office brought charges. In Slovakia, courts also have a narrow interpretation of the public interest defence with regard to privacy. In February 2012, a District Court in Bratislava prohibited the distribution or publication of a book alleging corrupt links between Slovak politicians and the Penta financial group. One of the partners at Penta filed for a preliminary injunction to ban the publication for breach of privacy. It took three months for the decision to be overruled by a higher court and for the book to be published.
The European Court of Human Rights rejected former Federation Internationale de l’Automobile president Max Mosley’s attempt to force newspapers to give prior notification in instances where they may breach an individual’s right to a private life, noting that the requirement for prior notification would likely chill political and public interest matters. Yet prior notification and/or consent is currently a requirement in three EU member states: Latvia, Lithuania and Poland.
Other countries have clear public interest defences. The Swedish Personal Data Act (PDA), or personuppgiftslagen (PUL), was enacted in 1998 and provides strong protections for freedom of expression by stating that in cases where there is a conflict between personal data privacy and freedom of the press or freedom of expression, the latter will prevail. The Supreme Court of Sweden backed this principle in 2001 in a case where a website was sued for breach of privacy after it highlighted criticisms of Swedish bank officials.
When it comes to data retention, the European Union demonstrates clear competency. As noted in Index’s policy paper “Is the EU heading in the right direction on digital freedom?“, published in June 2013, the EU is currently debating data protection reforms that would strengthen existing privacy principles set out in 1995, as well as harmonise individual member states’ laws. The proposed EU General Data Protection Regulation, currently being debated by the European Parliament, aims to give users greater control of their personal data and hold companies more accountable when they access data. But the “right to be forgotten” clause of the proposed regulation has been the subject of controversy as it would allow internet users to remove content posted to social networks in the past. This limited right is not expected to require search engines to stop linking to articles, nor would it require news outlets to remove articles users found offensive from their sites. The Center for Democracy and Technology referred to the impact of these proposals as placing “unreasonable burdens” that could chill expression by leading to fewer online platforms for unrestricted speech. These concerns, among others, should be taken into consideration at the EU level. In the data protection debate, freedom of expression should not be compromised to enact stricter privacy policies.
This article was posted on Jan 2 2013 at indexoncensorship.org
[1] Article 208 of the Criminal Code.
[2] Article 168(2) of the Criminal Code.
[3] Article 248 of the Criminal Code prohibits ‘disparagement of the State and its symbols, ibid, International PEN.
[4] Index on Censorship, ‘UK government abolishes seditious libel and criminal defamation’ (13 July 2009)
[5] More recent jurisprudence includes: Lopes Gomes da Silva v Portugal (2000); Oberschlick v Austria (no 2) (1997) and Schwabe v Austria (1992) which all cover the limits for legitimate criticism of politicians.
[6] Privacy is also protected by the Charter of Fundamental Rights through Article 7 (‘Respect for private and family life’) and Article 8 (‘Protection of personal data’).
24 Oct 13 | Media Freedom, News and features
This is a crosspost from WAN/IFRA
COMMONWEALTH PRESS UNION MEDIA TRUST, London, UK
FIPP – THE WORLDWIDE MAGAZINE MEDIA ASSOCIATION, London, UK
INTER AMERICAN PRESS ASSOCIATION, Miami, USA
INTERNATIONAL ASSOCIATION OF BROADCASTING, Montevideo, Uruguay
INTERNATIONAL PRESS INSTITUTE, Vienna, Austria
WORLD ASSOCIATION OF NEWSPAPERS & NEWS PUBLISHERS, WAN-IFRA, Paris, France; Darmstadt, Germany
WORLD PRESS FREEDOM COMMITTEE, Paris, France; Washington DC, USA.
Your Majesty
For more than three centuries since Britain abolished the last set of statutory controls on the press in 1695, the United Kingdom has been a consistent champion of the most crucial freedom of all – freedom of expression – and a beacon of liberty across the world.
Freedom of expression was central to the European Convention of Human Rights which Britain helped draft. It is part of the Universal Declaration of Human Rights to which the UK is a signatory. It is a core belief in the Commonwealth Charter which Britain inspired. Free speech and freedom of expression have throughout the 20th and 21st centuries therefore been at the core of Britain’s international commitments, of its leadership of the free world, and of its international reputation as a liberal democracy.
Yet all that is now in danger. No one should be in any doubt that the proposed Royal Charter which politicians are forcing Your Majesty to sign is, despite the camouflage, in reality a set of repressive statutory controls being imposed on the press against its will. That should not be the function of a Royal Charter.
Some will argue that it is just intended to establish a body to oversee an independent regulator. But by laying down rules about how that regulator must work and how the ethical Codes that bind the press should be written this toxic Charter brings Parliament for the first time ever to the heart of the newsroom. It breaches the fundamental principle that politicians must never get involved in editorial content regulation. And it lays the foundation for fully fledged statutory controls.
That will have a chilling impact on journalism throughout the United Kingdom – from the biggest national newspapers to the smallest local and regional papers and magazines in the four nations of your country – weakening democracy as a result.
But far more important to us is the impact of your actions across the globe. The world still follows Britain in so many areas. If the UK moves to control the press through the force of law then it will have a terrifying knock-on effect throughout the Commonwealth and much of the developing world where Britain has a key leadership role. The fact that this is being done by Royal Charter – an instrument traditionally used to grant rights, not to curtail them – will make that infinitely worse because of the respect in which You personally, and the Crown institutionally, are held throughout the world.
The actions of Britain’s Parliament will be used as an excuse by those who want to muzzle the press in their own country and stifle the free flow of information – and there are many governments who would love to do so. And it is your name, Your Majesty, that will regrettably be taken in vain. “If it is good enough for the Queen, it is good enough for us.”
Already we have seen the chill winds of what is happening in the UK in South Africa, Botswana and Sri Lanka. Many more will follow.
This issue is of huge importance for freedom of expression in the UK. It is important for Britain’s standing in the world. But above all it is important for the impact on countries not nearly so lucky as the many of us in Europe who until now have enjoyed fundamental freedoms.
At the Commonwealth Heads of Government meeting next month in Sri Lanka, the British Government – with The Prince of Wales as your representative – should be campaigning for the protection and expansion of free expression throughout the Commonwealth, not least in countries like Rwanda, Singapore and Sri Lanka itself, which persistently lag at the bottom of world press freedom indices alongside Syria and North Korea. Further, the British Government, which decriminalised defamation in 2009, should also take strong steps encouraging Commonwealth countries to repeal criminal defamation laws. But Britain will be in no position to do that if you have signed a Royal Charter which will be seized on by enemies of free speech everywhere eager to impose similar controls. Britain will have abrogated its rights and the world will be worse off for that.
We urge you, Ma’am, as the final guarantor of freedom of expression across the UK and your Commonwealth, not to sign this Charter.
Signed by the following members of the Coordinating Committee of Press Freedom Organisations:
COMMONWEALTH PRESS UNION MEDIA TRUST, London, UK;
FIPP – THE WORLDWIDE MAGAZINE MEDIA ASSOCIATION, London, UK;
INTER AMERICAN PRESS ASSOCIATION, Miami, USA;
INTERNATIONAL ASSOCIATION OF BROADCASTING, Montevideo,
Uruguay;
INTERNATIONAL PRESS INSTITUTE, Vienna, Austria;
WORLD ASSOCIATION OF NEWSPAPERS & NEWS PUBLISHERS,WAN-IFRA, Paris, France, Darmstadt, Germany;
WORLD PRESS FREEDOM COMMITTEE, Paris, France, Washington DC, USA.
08 Oct 13 | Europe and Central Asia, News and features
A poster from Marika Schmiedt’s exhibition Thoughts Are Free
The Hungarian Ambassador to Austria has called for the cancellation of a “racist” and “anti-Hungarian” art exhibition which opened yesterday in the Austrian city of Linz.
Thoughts Are Free, the exhibition by Roma artist Marika Schmiedt, features posters highlighting the plight of Roma people in Europe today. Several pieces draw parallels between the Nazis and Hungary’s far-right Jobbik party, whose views on the country’s Roma population have been well documented. In one poster, Hungarian Prime Minister Viktor Orbán from the Fidesz party is pictured on the label of “Natural Smoked Gypsy Cooked Salami” next to a Jobbik logo.
Ambassador Vince Szalay-Bobrovniczky labelled the exhibition: “a cheap provocation, openly racist and hostile against Hungary, and in violation of European values and the dignity of minorities, especially the Roma,” reported the Hungarian news agency MTI.
The Ambassador also took issue with it being located in Linz City Hall, stating that that the “socialist Linz city administration” will not back out of the “discrimination filled” project due to the artist’s political and ideological ties.
He contacted both Mayor Franz Dobuschs and Austrian President Heinz Fischer demanding that the exhibition be cancelled.
Image Marika Schmiedt
Image Marika Schmiedt
Linz City Hall has also been inundated with hundreds of emails from angry Hungarians, seemingly led by the Salzburg Hungarian Club, which, in May, invited Jobbik politician Tamás Sneider to speak.
This is not the first time Thoughts Are Free has caused controversy. When the posters were first exhibited at a construction site fence in Linz last November, the Austrian police removed them following complaints lodged by Hungarians.
Mayor Dobuschs however, did not budge: “Criticism and escalation is a legitimate method in a democracy,” he said in a reply to Szalay-Bobrovniczky. “We therefore stand by the artist who will receive a public forum at City Hall”.
The exhibition opening took place yesterday as planned, with police protection. Schmiedt told Index it was very well attended.
She added: “Maybe I might also dedicate a graphic to the ambassador?”
