Index Freedom of Expression Awards: Digital activism nominee Free Weibo

Internet censorship is rife in China. Social media sites are not exempt — there are 2,000,000 people employed in the country specifically to monitor microblogging sites. Against this backdrop, FreeWeibo works tirelessly to keep track of and publish all the censored and deleted social media messages, providing a fascinating insight into the regime’s priorities and fears.

On October 4 2013, an app version of the site was launched in the Chinese Apple app store, created in association with Radio Netherlands Worldwide. The creators fended off some initial attacks, assuming the only way the app could be truly be blocked was through blocking the entire app store. They were in for a surprise when, on November 28, Apple themselves decided to take down the app following complaints from Beijing.

The people behind FreeWeibo remain undeterred. They have launched a new type of mirror site, which they say can circumvent Chinese censorship.

Index on Censorship’s Taylor Walker interviewed FreeWeibo.

Index: How does it feel to be nominated for Index’s Digital Advocacy award and why do you think FreeWeibo was nominated?

FreeWeibo: We are totally honoured to be even thought of for this award especially given the strengths of the other projects. To be considered in that kind of company is humbling. We are delighted that we can make it onto the radar for Index on Censorship. We tend to think that a lot of people feel that fighting Chinese censorship is a lost cause. Obviously, we don’t feel that way but we get a general sense that a lot of other organizations, companies, or individuals don’t feel that it was a battle worth fighting. We very much think that not only can we fight the battle but we can win the battle.

Index: Could you describe the changing composition of FreeWeibo over the past few years?

FreeWeibo: We started as GreatFire.org in 2011- that website still exists. What we do is we track what websites and key word searches are being blocked in China. We started just covering just a few hundred websites now we have 90,000 websites in our database that are constantly being tested for censorship. We also want it to be a resource for people that want to know more about what’s happening with censorship in China. We’ve been very successful with that as well. We started FreeWeibo because we thought it was the obvious thing to do to combat censorship on Sina Weibo.

Index: How was government scrutiny following the launch of FreeWeibo?

FreeWeibo: After we launched Free Weibo it was blocked in 3 days. The government is paying close attention to what we are doing. They were paying close attention to what we were doing before FreeWeibo. But now we are working a on a new concept which we call “Collateral Freedom”. We are basically creating mirror websites that are blocked in China and hosting them on global cloud services. It’s been proven that the Chinese authorities are unable to block our mirror websites without blocking everything that’s being hosted on the cloud. We are gambling that the Chinese authorities won’t move to block everything that’s hosted in the cloud because that would create a huge disturbance in internet service in China and there would be severe economic consequences related to such a block. We are leveraging the cloud to deliver sensitive information back into China – including our own FreeWeibo website.

So far, our mirror websites have not been blocked. What we are doing now is delivering others using that same method. I don’t know how high on the radar we are for the Chinese authorities but regardless, all co-founders have close ties to China and from the time we started the project we all knew that we were getting involved in something that the Chinese authorities probably wouldn’t agree with so we took precautions right from the start to protect our identities and to basically make our involvement as secure as possible and we will continue to do that.

Index: Last year FreeWeibo teamed with Radio Netherlands Worldwide and created an app described as “unblockable.” What was your reaction to finding that Apple blocked the app?

FreeWeibo: That was actually the worst feeling. Worse than finding out that the Chinese authorities had disabled one of our test locations, for example. We expect that the Chinese government will do whatever it takes to stop us and we know that that will put pressure on foreign multinationals. But to actually know that Apple listened and obeyed the censorship authorities – it was a really low and sad moment for all of us – truly disheartening. Apple presents this totally other side to its customers and if you look at the way it markets the company it’s not the kind of karma that you’d expect from Apple.

We increasingly recognize that one of the biggest threats to our operation are large multinational companies. We’ve proved time and again that we can defeat the great firewall and we can defeat censorship in China but we need to leverage other platforms to be able to do that. If multinationals continue to concede to censorship requests from the Chinese authorities then we are going to be left with fewer options in terms of defeating censorship.

Index: How would you describe Freedom of Expression?

FreeWeibo: Freedom of expression and freedom of speech are actually written into the China’s constitution. We think that these are basic rights that Chinese citizens should enjoy – as should citizens of many other countries around the world. With the Snowden revelations, people are becoming more aware of different types of surveillance and censorship – the landscape is changing. I can say with confidence that we have a very clear path to ending censorship in China. We are also confident that we can actually bring our anti-censorship tools to other countries. This year, we are hoping to expand what we are doing with Collateral Freedom, what we are doing with GreatFire, and maybe what we are doing with FreeWeibo so that we can bring freedom of expression and freedom of speech to countries that need our help.

Index Freedom of Expression Awards
#indexawards2014 The nominees are…

Nominees: Advocacy | Arts | Digital Activism | Journalism

Join us 20 March 2014 at the Barbican Centre for the Freedom of Expression Awards


This article was published on 18 March 2014 at indexoncensorship.org

Meltem Arikan: “We were prevented from expressing ourselves freely”

Awards Arikan

This is the third part of a series of conversations with Turkish playwright and author Meltem Arikan about her play Mi Minor and her experiences during the Gezi Park demonstrations.

Julian Farrington, head of arts programmes at Index on Censorship spoke to Arikan about how this government-orchestrated terror campaign was to change her life.

On 2 June Arikan – with her friends Pinar Ogun, Memet Ali Alabora and Melin Edomwonyi — struggled through the massive crowds of demonstrators on the streets of Istanbul, reaching her home around two in the afternoon. The peaceful Gezi Park demonstrations had turned violent.

There had been clashes between the protesters and the police during the night. The previous day they had been among a group of artists who they had gathered together to broadcast a message to the governor from Taksim Square. They called for him to end the excessive police response and use of tear gas on peaceful protesters.

On the evening of 2 June, the Turkish authorities would start naming and blaming in an attempt to explain this eruption of anti-government protest. As the finger pointing evolved into a hate campaign, Arikan and the artistic team behind her play Mi Minor were among those targeted.

Index: How long after the play finished did the Gezi Park protests start?

Arikan: Mi Minor was staged in Istanbul from 1 December 2012 to 14 April 2013. The play was performed 23 times, more than 10,000 people attended. Gezi Park protests started on 27 May.

Index: What was the reaction to the play?

Arikan: Mainstream media showed great interest in Mi Minor. Before and during the performances Memet Ali Alabora, director and lead actor, and Pinar Ogun, the lead actress, were interviewed and hosted by nearly all major TV channels, newspapers and magazines. After only 5 performances, Mi Minor was named Radikal Newspaper’s Best Play of the Year by readers.

At first the audience was not interacting much with the play. The first remarkable reaction was a woman throwing her shoe at the Pinima president. However, when young people started joining and interacting with the play, the perception of the overall audience and their involvement changed. When young people figured out that there was more than one game to be played in our play, they started responding to Mi Minor in such smart, humorous and joyful ways.

We also had great responses on social media all around Turkey as well as other countries —  Netherlands, France, USA, Canada, Egypt, Australia and more. The play became a trending topic four times during the performances in Turkey.

In time, we started to have fans who would come to the play or join online every week and plan their own little games. For example one of the digital actors abroad came up with the idea of Pinileaks on the internet during each performance about the Pinima president. A group of online audience members, who were following the play online, got organised and came to Istanbul. There were also friends who got very excited about the play and came from abroad to see it. The play had the Marmite effect: Some loved it. some hated it. There have been many reviews about the play by Turkish and international critics, including Liberté infoPaulanow and Archetypeinaction.

Index: Were there any other awards or plaudits?

Arikan: Students of Galatasaray University awarded Memet Ali Alabora as best actor. Pinar Ogun was nominated for best actress. I was nominated for the best playwright in the Lions Theatre Awards. The play was named the Best Play of the Year by the Karvak Awards, which we refused to receive as I mentioned in the previous article.

Index: Did the government make any comments or have any reaction to it?

Arikan: There weren’t any comments or reactions from the government during the period when the play was being performed.

Index: I know you were uneasy about how it might be received by authorities.  How did you feel it went?

Arikan: We took a great deal of care to make sure that our made-up country Pinima didn’t relate to any specific government, including Turkey. I observed that some of the audience felt uncomfortable when the Pianist was taking their pictures or interviewing them on Ustream. I believe this is mostly because people were afraid to be seen as opposing power, even though Pinima was a fictional country. After each performance many people said to us that we were very brave and asked us to be careful.

Index: So now, let’s go to the moment on June 2 when you got back to your house after the artists made the statement condemning police violence. What was your mood when you closed your front door?

Arikan: We were tired, angry and confused when we got home. I can say that we got more worried as the events got more violent. It was so painful to see young people lose their lives knowing it all started off to protect trees. We were trying to keep our nerves together as we followed the events on  Twitter.

Index: When was the first time you heard that you and your friends were being named as the architects of the Gezi Park uprising?

Arikan: On 1 June, the first accusation was made against my close friend and the director of Mi Minor, Memet Ali Alabora, by members of the ruling party, claiming that Gezi protests were attempts to establish the grounds for a coup and his tweet, which would become so famous, was shown as evidence:

“It’s not just a matter of Gezi Park, haven’t you realised yet? Come join. #resistgezipark”

It was shocking to see how politicians could show such a simple tweet as an evidence for such a huge claim. All Memet Ali did was to attend the protests during the first three days and use twitter to express himself. It was hard to believe how he was being singled out and targeted.

As I said in the previous article, I tried to explain what happened in the first three days of Gezi Park protests. From the second night onwards, the protest that started about trees attracted thousands of people who were coming to the park to give voice to a whole range of issues that they were concerned about. There were political activists, environmentalists; even Turkish Airlines staff, who were out on strike at the time joined the demonstrations. And on 30 May the day Memet Ali sent his tweet, there were people holding up banners about protecting the environment, the demolition of the Emek Theatre, destruction of forests and rivers and government interference in personal lifestyles. Memet Ali’s intention was to report what he saw happening, as he stated in his press conference after the accusations of Yeni Şafak Newspaper:

“I went to Gezi Park on 28 May to protect the trees and the culture of Istanbul. After continuous police violence, the protest turned against the force used to suppress freedom of expression. People who gathered there started to express themselves on matters they were not able to express before. This was also the case for me. For me, as well as Gezi Park, I wanted to express my concerns about a whole range of issues I saw happening in the city: the demolition of Emek Theatre, the change in Istanbul City Theatre’s regulation, State Theatres that were being closed down, the green fields being destroyed on the Asian side of Istanbul, the old central station to be made a commercial building. I meant all these when I tweeted ‘it’s not just a matter of Gezi Park’.”

After 1 June, a campaign was launched by government officials, politicians, pro-government media and their social media supporters claiming that the Gezi Park protests were an international conspiracy, with links to business, arts and NGOs. Businessmen, artists, executives of many NGOs, sportsmen, journalists and many others started to be targeted as part of this conspiracy. First Memet Ali, then Mi Minor and all related to the play, were one of the main focuses of this campaign.

Memet Ali attended a news programme a couple of days later; during the programme President of AKP (Turkey’s ruling Justice and Development Party) Istanbul Party Organization almost threatened him via twitter:

“Memet Ali and his allies/friends/ will be “overturned” [referring Memet Ali’s surname “Alabora” as it literally means “overturn”], and our brotherhood will win”

On 10 June, the pro-government newspaper Yeni Şafak came out with the headline, “What A Coincidence”, accusing Mi Minor as being the rehearsal for the protests, six months in advance. The subheadline said that “New information has come to light to show that the Gezi Park protests were an attempted civil coup” and continued claiming that “the protests were rehearsed months before in the play called ‘Mi Minor’ staged in Istanbul”.

After Yeni Şafak’s headline, the mayor of Ankara, started to make programmes on TV specifically about Mi Minor, also mentioning my name.  A news channel called A Haber ran a story about the graphic designer of the play, accusing her of being one of the masterminds of the social media behind the protests. They announced her full name and twitter account, giving false reports on her. She later lost her job as a consequence.

Index: The newspaper was making a direct connection between your play Mi Minor and the demonstrations.  How did they justify, support this claim?

Arikan: As I mentioned before, a smear campaign had already been launched. Any news by pro-government media were built on the premise that Gezi Park protests didn’t start as protection of trees but as an international conspiracy by the secret powers and the interest lobby against the emergence of a new Turkey.

This introduction to the article in the pro-government paper Yeni Şafak’s is an example of this conviction:

“The Gezi Park protests that started off with claims about cutting trees and which suddenly grew into a campaign calling for the government to resign, with false news on social media has come into its 14th day. New information on events has revealed they were an attempt to develop into an international operation with the support of the interest lobby, and throws a new light on the supposed innocence of the Gezi Park protests. There have been precise rehearsals of the Gezi events in the play ‘Mi Minor’ which was staged between 1st of December 2012 – 14th of April 2013.”

By projecting Memet Ali as someone “who has drawn attention with his provocative public tweets ever since the first day of the protests”, the newspaper tried to link his popular tweet with the play. In Mi Minor we used gourds in our fictional country Pinima, as a nonsensical export which was supposed to drive the economy. We were very cautious when choosing the symbols used in the play in order to create a unique country. Referring to the AKP’s use of a light bulb as their party symbol, the newspaper claimed that we were “targeting AK Party by using symbols that resemble the AKP symbol”. They presented the unique theatre style of Mi Minor as training for young people, teaching, “how people should revolt and how they can organise their revolution on social media”.

For the newspaper, Memet Ali’s participation in the protests, the gourds, the way social media was used in both the play and the protests, the portrayal of a dictator president in the play and the opportunity that the play gave for the audience to oppose to the President was enough to justify its  attack.

“The play “Mi Minor” proves that the Gezi Park protests, which was turned into a campaign to overthrow the government, were being staged on another medium before the actual protests started.”

Index: They claimed that you were part of a conspiracy, funded by foreign governments – can you tell us more about this?

Arikan: Once the premise of the conspiracy was established, any figure who somehow participated in the protests would always be linked to it, and thus to the foreign governments. On one of his programs the mayor of Ankara claimed, without proof, that Mi Minor was funded from abroad.

Ten days after their news on Mi Minor, Yeni Şafak featured another story, presenting Memet Ali’s holiday visits to the Red Sea and London as if they were preparations for Gezi protests. On various TV programs, websites and online forums Mi Minor or my name were being linked to secret international powers. Presentations were made to district organisations of the AK ruling party, explaining how Mi Minor was part of the international conspiracy.

There were so many groundless accusations that it is impossible to remember them all.

Index: You decided to lie low and stay in the house. What was it like in the house? Who was there? What was the atmosphere?

Arikan: Even now, I don’t want to remember what I went through during those days. We were extremely distressed. We were receiving hundreds of threats and accusations almost every minute via social media. We found it really difficult to believe what we were reading when we saw the news about Mi Minor. Even though most of the media covered Memet Ali’s press conference, it didn’t stop the accusations. The accusations were then carried on to TV.  Mi Minor was being discussed on various TV channels at least twice a week. Pinar and I started to use anti-depressant pills during this period because it was impossible to understand and cope with what was going on. I wasn’t just worried for myself but also for the people I love.

Index: The protests continued until long after you closed your front door. Did the police make any arrests in the days following the protests?  Given what was being written about you, did you expect they would arrest you?

Arikan: There were ongoing arrests at the time. We were prepared for every possibility. We knew it was also possible we would be arrested. It was nerve wracking to live with such uncertainty. There were continuous threats and accusations.  All this was happening because I created a play and attended a peaceful protest to protect trees.

Sadly, this was just a beginning for us. While the demonstrations were happening at Taksim and Gezi Park, the prime minister held several rallies. During his speeches at two consecutive rallies in Ankara and Istanbul, he read Memet Ali’s tweet to his supporters and made the crowd boo Memet Ali. Pinar and I were watching the prime minister’s speech live on TV. Pinar was shaking with fear and shock, she was repeatedly asking “why?” We were not sleeping. We were not talking with anyone outside the house or on the phone.

Several complaints were submitted to the prosecutors about Memet Ali. They sued him for encouraging a crime showing his tweet as evidence. Prosecutors eventually dropped all charges, though the last one was only dropped in January 2014.

It wasn’t the arrests we were afraid of. We feared for our lives. The days were hard to follow. We lost track of time. We were numb, timeless, sleepless and speechless. I don’t like to remember those days we had to spend at home.

Index: After a while of this attack on Memet Ali and others, the mayor of Ankara launched his personal campaign against you.  Why do you think he got so heated? Was there a particular political motive for his attacks?

Arikan: My nervous system had already been broken by the time I saw that one of the many programs on Mi Minor was now focusing on me. They were showing an edited version of one of my speeches that I made six years ago about secularism.  It was edited in such a way that I came across as an anti-Muslim agitator. What I found so brutal about this was the fact that they were using religion to provoke people against me. Religion has always been one of the most sensitive subjects in Turkey. What upset me most was the fear I witnessed in my son’s eyes and the anxiety that my partner was living through.

I find it dreadful for a politician to be able to play with people’s lives so easily. I don’t know what his political motive was. But I do know very well that these motivations do not include any humanitarian sensibility or responsibility. In responses to all these accusations, I wrote a confession for my column in Kazete, which was subsequently shared on many websites and through social media.

“I’M GUILTY I CONFESS

I’m guilty; as a woman writer, for years I’ve been rejecting the male dominated system and for the last couple of years I’ve been trying to understand and express what’s been happening during the transition period from the analogue world to the digital world.

I confess; two and a half years ago, using my intellect and my imagination, I wrote a play called “Mi Minor”. Our play was performed 23 times in 3 different venues with the permission of Governorship of Istanbul for each venue. My imagination fails me when I try to understand those who accuse us of rehearsing the Gezi Park events before it has started, provoking all that is currently happening in our country; linking us to various foreign organizations and part of an fantastical conspiracy theory relating to all these lies – even though they haven’t seen our play.

I’m guilty; I know that for thousands of years the culture of fear has been creating ‘the other’ through race and religious differences and has been making up rational reasons for wars by imposing hate and violence. I say ENOUGH to the analogue world order imposed by the male dominated system based on culture of fear, which is the one and only common culture of all societies in the world and which has been forced upon all societies, for thousands of years.

I confess; culture shall not be attributed to any society or any race. Culture is formed through the results of women and men’s existence(s) affecting each other and their interactions with nature. When defining cultural differences, the analogue world order has always disregarded the differences between men and women’s lives, which forms the foundation of all cultures. It’s women and men that create cultures and civilizations. It is a big mistake to restrict the parameters of cultural formation just with race, religion, geography and traditions, seperated from the existence of women and men.

I believe the new digital order will be constructed by accepting that societies are formed by women and men without prioritising race, religion, language and sexual differences.

I’m guilty; I believe in freedom of thought and freedom of expression by getting away from the pressures of all ideologies, political statements, military or civilian coups.

I confess; I want to think and live freely by moving away from the thought patterns that have been imposed by the patriarchal system for thousands of years.

I’m guilty; I know that the only reason of running away from reality, deflecting reality, creating ‘the other’ is fear.

I confess; I will not be frightened and to become ‘the other’.”

Index: Can you describe the nature of the campaign and how it was manipulating the public?

Arikan: On YouTube everyday different users uploaded the video made about me, which was presented by the mayor of Ankara on his son’s TV channel. Discussions and comments about me started to be made on digital forums and blogs during his campaign, referencing the banning of my book in 2004. I received hundreds of rape and life threatening emails and tweets as a result of this campaign.

Index: At what point did you start getting frightened for your safety?

Arikan: I started to get really angry because — as a woman writer supporting secularism — I have been pointed to as a threat to Islamic faith and destructor of the Turkish family order, over and over on TV and social media. Such accusations against any woman, is a threat on her life. However, I was never frightened for losing my own life, I still stand for everything I said, my fear was firstly for the security of my son and the people I love.

On 24 June newspapers carried very frightening news. A Islamist journalist claimed that he had heard that there was a contract out to kill Memet Ali. He didn’t mention any names or any organisations. This was when we really started to worry about our lives.

Index: From 1 June until the time you left the country, you did not feel safe to go out and for the most part, friends brought food and things you needed.  But you did go out once. What happened?

Arikan: Pinar and I had to go to the bank one day, since the bank is very close to where we live, we didn’t see any harm in driving there. But when we came back out from the bank we found the words “YOU ARE DEAD” written on the car. This of course upset us all very much. And just a few days after, I saw that mayor of Ankara’s son was tweeting about me for hours.

The selected sentences he chose to tweet about were all excerpts from my research publication called ‘The Body Knows’. He was clearly provoking people against me with false accusations and manipulating what I had written. Those tweets were the last straw.

I realised that we were surrounded, imprisoned in our own home and prevented from expressing ourselves freely.

I decided to leave to build a new life with my son, leaving everything else behind in order to express my thoughts freely.

This article was posted on February 11 2014 at indexoncensorship.org

Index supports referral request in Delfi v. Estonia

Dean Spielmann
President
European Court of Human Rights
Council of Europe
F-67075 Strasbourg cedex
France

13 January 2014

Re:  Grand Chamber referral in Delfi v. Estonia (Application no. 64569/09)

Index’s coverage: European ruling spells trouble for online comment

Dear President Spielmann and members of the panel:

We, the undersigned 69 media organisations, internet companies, human rights groups and academic institutions write to support the referral request that we understand has been submitted in the case of Delfi v. Estonia (Application No. 64569/09). Signatories to this letter include some of the largest global news organisations and internet companies including Google, Forbes, News Corp, Thomson Reuters, the New York Times, Bloomberg News, Guardian News and Media, the World Association of Newspapers and News Publishers and Conde Nast; prominent European media companies and associations including the European Newspaper Publishers’ Association, Sanoma Media Netherlands B.V. and the European Publishers Council; national media outlets and journalists associations from across the continent; and advocacy groups including Index on Censorship, Greenpeace, the Center for Democracy and Technology and ARTICLE 19.

We understand that the applicant in the above-referenced case has requested that the chamber judgment of 10 October 2013 be referred to the Grand Chamber of the Court for reconsideration.  We are writing to endorse Delfi’s request for a referral due to our shared concern that the chamber judgment, if it stands, would have serious adverse repercussions for freedom of expression and democratic openness in the digital era. In terms of Article 43 (2) of the Convention, we believe that liability for user-generated content on the Internet constitutes both a serious question affecting the interpretation or application of Article 10 of the Convention in the online environment and a serious issue of general importance.

The case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.

We find the chamber’s arguments and conclusions deeply problematic for the following reasons.

First, the chamber judgment failed to clarify and address the nature of the duty imposed on websites carrying user-generated content: what are they to do to avoid civil and potentially criminal liability in such cases? The inevitable implication of the chamber ruling is that it is consistent with Article 10 to impose some form of strict liability on online publications for all third-party content they may carry. This would translate, in effect, into a duty to prevent the posting, for any period of time, of any user-generated content that may be defamatory.

Such a duty would place a very significant burden on most online news and comment operations – from major commercial outlets to small local newspapers, NGO websites and individual bloggers – and would be bound to produce significant censoring, or even complete elimination, of user comments to steer clear of legal trouble.  The Delfi chamber appears not to have properly considered the implications for user comments, which on balance tend to enrich and democratize online debates, as part of the ‘public sphere’.

Such an approach is at odds with this Court’s recent jurisprudence, which has recognized that “[i]n light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally.”[1] Likewise, in Ahmet Yildirim v. Turkey, the Second Section of the Court emphasised that “the Internet has now become one of the principal means of exercising the right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest”.[2]

Secondly, the chamber ruling is inconsistent with Council of Europe standards as well as the letter and spirit of European Union law. In a widely cited 2003 Declaration, the Committee of Ministers of the Council of Europe urged member states to adopt the following policy:

“In cases where … service providers … store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware … of their illegal nature.

When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information.”[3]

The same position was essentially adopted by the European Union through the Electronic Commerce Directive of 2000. Under the Directive, member states cannot impose on intermediaries a general duty to monitor the legality of third-party communications; they can only be held liable if they fail to act “expeditiously” upon obtaining “actual knowledge” of any illegality. This approach is considered a crucial guarantee for freedom of expression since it tends to promote self-regulation, minimizes the need for private censorship, and prevents overbroad monitoring and filtering of user content that tends to have a chilling effect on online public debate.

Thirdly, it follows from the above that the Delfi chamber did not thoroughly assess whether the decisions of the Estonian authorities were “prescribed by law” within the meaning of Article 10 § 2. Under the E-Commerce Directive and relevant judgments of the Court of Justice of the European Union (CJEU), it was not unreasonable for Delfi to believe that it would be protected by the “safe harbour” provisions of EU law in circumstances such as those of the current case.[4] The chamber ruling sets the Court on a potential course of collision with the case law of the CJEU and may also give rise to a conflict under Article 53 of the Convention.

Finally, the chamber ruling is also at odds with emerging practice in the member states, which are seeking innovative solutions to the unique complexities of the Internet. In the UK, for example, the new defamation reforms for England and Wales contain a number of regulations applicable specifically to defamation through the Internet, including with respect to anonymous third-party comments. Simply applying traditional rules of editorial responsibility is not the answer to the new challenges of the digital era. For similar reasons, related among others to the application of binding EU law, a recent Northern Ireland High Court judgment expressly chose not to follow the Delfi chamber ruling.[5]

For all these reasons, we strongly urge the Court to accept the applicant’s request for a referral that would allow the Grand Chamber to reconsider these issues, taking into account the points raised by the signatories in this letter. There is no question in our minds that the current case raises “a serious question affecting the interpretation” of Article 10 of the Convention as well as “a serious issue of general importance” (Art. 43).

Sincerely,

Algemene Vereniging van Beroepsjournalisten in België

American Society of News Editors

ARTICLE 19

Association of American Publishers, Inc

Association of European Journalists

Bloomberg

bvba Les Journaux Francophones Belges

Center for Democracy and Technology

Conde Nast International Ltd.

Daily Beast Company, LLC

Digital First Media, LLC

Digital Media Law Project, Berkman Center for Internet & Society – Harvard University

Digital Rights Ireland

Dow Jones

Electronic Frontier Finland

Estonian Newspapers Assocation (Eesti Ajalehtede Liit)

EURALO (ICANN’s European At-Large Organization)

European Digital Rights (EDRi)

European Information Society Institute (EISi)

European Magazine Media Association

European Media Platform

European Newspaper Publishers’ Association (ENPA)

European Publishers Council

Federatie van periodieke pers, the Ppress

Forbes

Global Voices Advocacy

Google, Inc.

Greenpeace

Guardian News & Media Limited

Human Rights Center, Ghent University

Hungarian Civil Liberties Union

iMinds-KU Leuven, Interdisciplinary Centre for Law and ICT

Index on Censorship

International Press Institute

Internet Democracy Project

La Quadrature du Net

Lithuanian Online Media Association

Mass Media Defence Center

Media Foundation Leipzig

Media Law Resource Center

Media Legal Defence Initiative

National Press Photographers Association

National Public Radio

Nederlands Genootschap van Hoofdredacteuren

Nederlands Uitgeversverbond (NUV)

Nederlandse Vereniging van Journalisten

Net Users’ Rights Protection Association

News Corp.

Newspaper Association of America

North Jersey Media Group, Inc

NRC Handelsblad

Online News Association

Open Media Coalition – Italy

Open Rights Group

Panoptykon

PEN International

PEN-Vlaanderen

Persvrijheidsfonds

Raad voor de Journalistiek

Radio Television Digital News Association

Raycom Media, Inc.

Reporters Committee for Freedom of the Press

Sanoma Media Netherlands B.V.

Telegraaf Media Groep NV

The New York Times Company

Thomson Reuters

Vlaamse Nieuwsmedia

Vlaamse Vereniging van Journalisten

Vrijschrift

World Association of Newspapers and News Publishers


[1] Times Newspapers Ltd v. the United Kingdom (Nos. 1 and 2), Judgment of 10 March 2009, para. 27. See also Editorial Board of Pravoye Delo and Shtekel v. Ukraine, Judgment of 5 May 2011.

[2] Judgment of 18 December 2012, para. 54.

[3] Declaration on freedom of communication on the Internet, 28 May 2003, adopted at the 840th meeting of the Ministers’ Deputies.

[4] The CJEU has ruled, with reference inter alia to Article 10 ECHR, that an Internet service provider cannot be required to install a system filtering (scanning) all electronic communication passing through its services as this would amount to a preventive measure and a disproportionate interference with its users’ freedom of expression and information. See Scarlet v. Sabam, Case C-70/10, Judgment of 24 November 2011; and Netlog v. Sabam, Case C-360/10, Judgment of 16 February 2012.

[5] J19 & Anor v Facebook Ireland [2013] NIQB 113 (15 November 2013), at http://www.bailii.org/nie/cases/NIHC/QB/2013/113.html.

The EU and freedom of expression in its southern neighbourhood

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This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression


In the aftermath of the Arab Spring, the EU shifted its neighbourhood policy in the southern neighbourhood. In response to the revolutions and social movements in the region, the EU shifted the focus of its neighbourhood policy from economic development towards human rights. On 8 May 2011, the EU High Representative and the European Commission issued a joint communication proposing “A partnership for democracy and shared prosperity with the southern Mediterranean“.

The EU now emphasises the “three Ms”: money, market access and mobility, with the first “M” addressing the EU’s commitment to financially support transition to democracy and civil society. The strategy also heralded the creation of the Civil Society Facility for the neighbourhood (covering both the southern and eastern neighbourhoods), with an overall budget of €26.4 million for 2011 to strengthen civil society. In parallel, the European Instrument for Democracy and Human Rights (EIDHR) deployed a number of operations in the region to protect and promote freedom of expression, often without the consent of the host country.

The apparent efforts to promote freedom of expression in the southern neighbourhood after the Arab Spring are in stark contrast to the multilateral partnerships that the EU actually established, often with the now overthrown dictatorships. The Euro-Mediterranean Partnership (EUROMED), also known as the Union for the Mediterranean (UfM) and formerly known as the Barcelona Process, was re-launched in 2008 as a multilateral partnership between the EU member states and 15 Mediterranean partner countries in the EU’s southern neighbourhood. Of the UfM’s six key initiatives launched prior to the Arab Spring, none related to the promotion of human rights. EU member states that border the Mediterranean Sea, in particular Italy, Spain and France, emphasised cooperation on migration, energy supplies and help with counter-terrorism, while adopting a relatively passive approach toward democracy and human rights.

Critics contend the UfM was overly concerned with regional security and economic partnership at the expense of human rights, including the right to freedom of expression.  For example, in spring 2010, the EU began negotiations with Tunisia on advanced status within the European Neighbourhood Policy, with clear economic benefits for the country, even though, at the same time, the Ben Ali regime was clamping down on freedom of expression.  Ben Ali’s government even introduced a draconian NGO law during the period of the advanced status talks, in an attempt to prevent Tunisian activists from lobbying the EU to be tougher on human rights issues. As a result, even with the new “three Ms” strategy, the EU and its member states suffer from a legacy credibility problem in the region and are often seen as former allies of repressive regimes.

The EU has continued to lack unity on the use of conditionality to enhance political and human rights reform.  Germany, Finland and the Netherlands have generally been more supportive of this reform, whereas Italy and Portugal are less keen on penalising countries for failing to introduce reform.  According to a survey of over 700 experts initiated by the European Commission, both the UfM and the EU have failed to deliver the expectations of key regional actors, 93% of those interviewed called on the EU to have a greater role in the region. The survey indicated that Turkey was perceived as the most active country in the region on the promotion of human rights, ahead of the US, followed by all EU countries combined.

In its near neighbourhood, the EU has had mixed levels of success in promoting freedom of expression. Enlargement continues to be the most effective tool at the EU’s disposal in incentivising countries to improve their domestic situation for freedom of expression. With enlargement slowing, this leverage may diminish and other levels have become important. Therefore, it is arguable that the Eastern Partnership and southern neighbourhood policy are test cases for how effective the EU can be beyond enlargement. Yet, with key regional actors in both the eastern and southern neighbourhoods all too aware of the EU’s failings, and with expectations high as to what the EU can achieve, ensuring these policies are strategic and sustained in their demands for freedom of expression is essential.