03 Jun 14 | Campaigns, Politics and Society
As part of its effort to map media freedom in Europe, Index on Censorship’s regional correspondents are monitoring media across the continent. Here are incidents that they have been following.
AUSTRIA
Police block journalists’ access to protest
Police denied journalists access to the site where members of the right-wing group “Die Identitären” were demonstrating on May 17. News website reports and a video from Vice News show police using excessive force against demonstrators. The Austrian Journalists’ Club described the police’s treatment of journalists as one of the recent “massive assaults of the Austrian security forces on journalists” and called for journalists to report breeches in press freedom to the club. (Austrian Journalists’ Club) (Twitter)
CROATIA
Croatian law threatens journalists
Croatia’s new Criminal Code establishes the offence of “humiliation”, a barrier to freedom of expression that has already claimed its first victim among journalists – Slavica Lukić, of newspaper Jutarnji list. A Croatian journalist is likely to end up in court and be sentenced for “humiliation” for writing that the Dean of the Faculty of Law in Osijek, Croatia’s fourth largest city, is accused by the judiciary of having received a bribe of 2,000 Euros to pass some students during an examination. For the court, it is of little importance that the information is correct – it is enough for the principal to state that he felt humbled by the publication of the news. According to Article 148 of the Criminal Code, introduced early last year, the court may sentence a journalist (or any other person that causes humiliation to others) if the information published is not considered as of public interest.
CYPRUS
Cyprus’ Health ministry Director General accused of 30million scandal whitewash
9.5.2014: The former Director General of the Ministry of Health, Christodoulos Kaisis, is alleged to have censored the responses of two ministerial departments during an audit regarding a 30 million scandal of mispricing of drugs. He did not send the requested information to the Audit Committee of the Parliament. (Politis)
DENMARK
Journalists convicted for violating law protecting personal information
On May 22 2014 two Danish journalists got convicted for violated Danish law protecting personal information because they named twelve pig farms in Denmark as sources of the spread of MRSA, a strain of drug-resistant bacteria. They argue they had been trying to investigate the spread of MRSA, but the government had wanted to keep that information secret. Their defense attorney claims revealing the names was appropriate because ‘there is public interest in openness about a growing health hazard’. The penalty was up to six months imprisonment, but the judge ruled they have to pay 5 day-fines of 500 krone (68 euro). The verdict is a ‘big step back for the freedom of press’ in Denmark, one of the journalists, Nils Mulvad said after the trial.
FINLAND
ECHR rejects journalist’s free speech claim
On April 29 2014, the European Court of Human Rights rejected a free speech claim over a defamation conviction by a Finnish journalist. In August 2006 journalist Tiina Johanna Salumaki and her editor in chief were convicted of defaming a businessman. The newspaper published a front page story, asking whether the victim of a homicide had connections with this businessman, K. U. The court ruled that Salumaki and the newspaper had to pay damages and costs to K. U. According to Salumaki her right to free expression was breached.
GERMANY
Journalist’s phone tapped by state police
A journalist’s telephone conversation with a source was tapped by state criminal police. The journalist, Marie Delhaes, spoke about the police’s subsequent contact with her on the media show ZAPP on German public television. Police asked her to testify as a witness in a criminal case against the source she communicated with, an Islamist accused of inciting others to fight with rebels in Syria. Delhaes was threatened with a fine of 1000 Euros if she were to refuse to testify. She has since claimed reporter’s privilege, protecting her from being forced to testify in a case she worked on as a journalist. (NDR: ZAPP)
Local court rules police confiscation of podcasters’ recording equipment and laptops was illegal
A court ruled on May 22 that police officers’ 2011 confiscation of recording equipment and laptops in a van used by the podcasters Metronaut and Radio Freies Wendland was illegal. The podcasters were covering the transport of atomic waste through Germany and were interviewing anti-atomic energy activists. When the equipment was confiscated, police officers also asked the podcasters to show official press passes, which they did not have. The court ruled that police failed to determine the present danger of the equipment in the van before confiscating it for three days. Metronaut later sued the police. (Metronaut) (Netzpolitik.org)
GREECE
Lost in translation
The Greek newswire service ANA-MPA is accused by its own Berlin correspondent of engaging in pro government propaganda after a translation of the official announcement by the German Chancellor regarding Angela Merkel’s Athens visit is ‘revised’, eliminating all mentions of ‘austerity,’ replacing the word with ‘consolidation’. (The Press Project)
Radio advert from pharmacists banned
A union representing pharmacists in Attica has accused the government of censorship, after it was told it may not broadcast adverts deemed by the authorities to be a political nature in the run up to elections later this month. (Eleftherotypia, English Edition)
ITALY
The regional Italian newspaper “L’ora della Calabria” is shut down due to political pressure
After the complaint, in February, against the pressures to not refer in an article to the son of senator Antonio Gentile, and to the block of the printing presses on the same day (an episode that is under investigation by the judiciary), now the newspaper L’Ora della Calabria is closing. The publications have been halted, even that of the website. This was decided by the liquidator of the news outlet, who had for a long time been in financial difficulties.
Reporter sued for criticizing the commissioner
Marilena Natale criticized a legal consultancy that cost €60’000 in the town whose City Council has dissolved for mafia, and which suffers from thirst due to the closure of the artesian wells. Ms Marilena Natale, reporter for the Gazzetta di Caserta and +N, a local all-news television channel, was sued. She had in the past already been the victim of other complaints and assaults. To denounce the journalist was Ms Silvana Riccio, the Prefectural Commissioner who administers the City of Casal di Principe, fired due to Camorra infiltrations. The Commissioner Riccio feels defamed by a series of articles written by the reporter in which the decision to spend €60’000 for legal advice is criticized, while the citizens suffer thirst due to the closure of numerous wells due to groundwater pollution.
MACEDONIA
A band to defend press freedom
24.4.2014: A music band called “The Reporters” was created recently by famous Macedonian journalists. The project aims to defend press freedom in Macedonia and support their colleagues who are facing censorship and other limitations. (Focus)
Macedonian government member encourages censorship in the press
14.5.2014: The Macedonian government quietly encourages censorship in the press, buys the silence of the media through government advertising and at the same time gives carte blanche to use hate speech, said Ricardo Gutierrez, Secretary General of the European Federation of Journalists during a conference of the Council of Europe in Istanbul on the 14th of May. (Focus)
Macedonian Journalists ‘Working Under Heavy Pressure’
24.3.2014: Sixty-five per cent of Macedonian journalists who responded to a survey publish last March, have experienced censorship and 53 per cent are practicing self-censorship, says the report, entitled the ‘White Book of Professional and Labour Rights of Journalists’. (Balkan Insight)
MALTA
The Nationalist Party complains of censorship by the public broadcaster PBS
The Nationalist Party (PN) has accused PBS of censoring it in its coverage of the European parlament elections campaign. The party noted that PBS did not send a journalist to report on Simon Busuttil’s visit to Attard and Co on Tuesday and it had also failed to sent a reporter to cover a press conference addressed by PN Secretary General Chris Said in Gozo this morning. “This is nothing but censorship during an electoral campaign,” the PN said. The PN has also complained with the national TV station on its choice of captions for news items carried in the bulletin.
NETHERLANDS
Press photographers’ equipment seized
During a raid on a trailer park in Zaltbommel on may 27 2014, the cameras of two press photographers were seized by the police. According to the spokesman of the court of Den Bosch the police took the cameras after several warnings. The photographers were on the public road. After a few days the two photographers got their cameras back, but their memory cards with the photo’s are still not returned. The NVJ, de Dutch journalist Union, has pledged to stand with one of the journalists in his claim to get his photo’s back.
SERBIA
Serbia Floods Interrupt Free Flow of News
Websites criticising the government’s handling of the flood disaster in Serbia have come under attack from hackers in what some call a covert act of censorship. Creators of the Serbian blog Druga Strana, which published critical posts on the Serbian state’s handling of the flooding, were forced to shut it down on Tuesday after repeat attacks on the site. “The site has been under heavy attack so we decided to shut it down in order not to compromise other sites on the server,” Nenad Milosavljevic said.
Serbian Newspaper Editor Fired After Criticising Govt
The sacking of Srdjan Skoro, editor of state-owned newspaper Vecernje Novosti, who publicly criticized Serbia’s new ministers, has been described as an attack on independent media. Skoro said that he was told that he was no longer the editor of the Serbian tabloid Vecernje Novosti on Friday morning, but was given no explanation for his sacking. “I have been told to find another job and that I would perhaps do better there,” Skoro said. He said that although no one has said it directly, the reason for his dismissal was his recent appearance on public service broadcaster RTS’s morning TV show, in which he openly criticised some candidates for posts in the new Serbian cabinet.
SERBIA
Media in Serbia: the government’s double standard
Aleksandar Vučić’s government seems to be adopting a double standard when it comes to media: one for the EU, one for Serbia, with tight control over newspapers and television stations. I do not believe in chance, and I know “where all this is coming from and who is behind it”. Thus Aleksandar Vučić, Prime Minister of Serbia, commented the statement by Michael Davenport, head of the EU Delegation, about “unpleasant and unacceptable” issues in Serbian media. Davenport said that elements of investigations conducted by the judiciary are leaked to the public through some media, and that the “cases” of parallels being made between representatives of civil society and crime are “a clear violation of the ethical standards of the media”.
SLOVENIA
If you can’t stand the heat, don’t turn up the oven: Strasbourg Court expands tolerance for criticism of xenophobia to criticism of homophobia
On the 17th of April 2014, the European Court of Human Rights issued a judgement in the case of Mladina v. Slovenia. In this case, the Court further develops its standing case law on “public statements susceptible to criticism”. When assessing defamation cases, the Court has in the past found that authors of such statements should show greater resilience when offensive statements are in turn addressed to them.
SPAIN
The government threats to censor social media
“We have to combat cybercrime and promote cybersecurity, and to clean up undesirable social media.” These were the words of the Spanish Minister of Interior, Jorge Fenández Díaz, after the wave of comments published on social media about the assassination of Isabel Carrasco, president of the Province of León and member of the government party (Pp). Although the majority expressed their condolences to the family of the victim, there were some that took advantage of the moment to openly criticize the politician, including mocking her assassination. These tweets generated a strong reaction of rejection in certain circles. For their part, Tweeters have reacted by creating two hashtags, #TuiteaParaEvitarElTalego (Tweet to stay out of Jail) y #LaCárcelDeTwitter [Twitter Prison], through which many Internet-users vent their frustration against politicians who want to silence them. On the other hand the Federal Union of Police has published a note that proposes a change in legislation with the alleged intent of protecting minors, relatives of victims, and users in general.
Extremadura public television don’t broadcast the motion of censure on the regional president Monago
Extremadura public television did not broadcast the debate and subsequent vote of no confidence on the regional president and member of the government party Antonio Monago on May 14th, despite the political relevance of the issue (the debate was broadcasted only trough the TV’s website). The workers called a protest to consider a motion of censure “is a matter of highest public interest and should be covered by public broadcast media in all its channels”, as expressed by the council in a statement.
TURKEY
Founder of satirical website sentenced for discussion thread considered insulting to Islam
The founder of the satirical online forum Ekşi Sözlük was given a suspended sentence of ten months in prison. Forty authors for the user-generated website were detained in connection to a complaint that a thread in an Ekşi Sözlük forum was insulting to Islam. Founder Sedat Kapanoğlu and another defendant received suspended prison sentences for insulting religious values. (Hürriyet Daily News)
Journalists recently released from prison speak out against government using release for political capital
Journalists who had been imprisoned for two years in connection to the KCK case were released this month. Several of the released journalists gave a press conference on May 13 condemning the government’s manipulation of the case to improve its own human rights and press freedom standing internationally. Yüksek Genç, a journalist who spoke at the press conference, said that the amount of journalists in prison can not be the only measure of Turkey’s press freedom, since the government has other ways of meddling in media and putting economic pressure on news organisations. A number of journalists have been released from prison this year after a court regulation was changed, enforcing a shorter maximum detention time for prisoners awaiting trial on terrorism charges. (Bianet)
Police detain and injure journalists at May 1 protests
During May Day protests in Istanbul, police blocked journalists’ access to demonstrating crowds and demanded they show official press passes to enter the area around Taksim Square. At least 12 journalists were injured by police officers using rubber bullets, teargas and bodily force. Deniz Zerin, an editor of the news website t24, was detained trying to enter his office and held for three days. (Bianet)
Prominent journalist sentenced to ten months in prison for tweet insulting Prime Minister Erdoğan
On April 28, the journalist Önder Aytaç was sentenced to ten months in prison for a 2012 tweet that the court ruled to be insulting to Turkish Prime Minister Erdoğan under blasphemy laws. The tweet included a word that translates to “my chief” or “my master” (relating to Erdoğan), but included an additional letter at the end that made the word vulgar. Erdoğan sued Aytaç, who maintained that the extra letter in his tweet was a typo. (Medium)
For more reports or to make your own, please visit mediafreedom.ushahidi.com.
With contributions from Index on Censorship regional correspondents Giuseppe Grosso, Catherine Stupp, Ilcho Cvetanoski, Christina Vasilaki, Mitra Nazar
This article was posted on June 3, 2014 at indexoncensorship.org
08 May 14 | Europe and Central Asia, News and features
Eurovision contestant Teo, in the music video for this year’s Belarusian entry Cheesecake (Image: Yury Dobrov/YouTube)
If you want a Eurovision of the future, imagine a faux-dubstep bassline dropping on a human falsetto, forever. That was how it felt watching YouTube footage of this year’s entrants in the continent’s greatest song-and-dance-spectacle.
The Eurovision Song Contest, born of the same hope for the future and fear of the past as the European Union, is approaching its 50th year. And strangely, it’s doing quite well. In spite of fears that the competition would end up as an annual carve up between former Soviet states, recent years have in fact seen a fairly equal spread of winners throughout the member states of the European Broadcasting Union (who do not actually have to be in Europe; a fact often missed by anti-Zionists who somehow see a conspiracy in the fact that Israel is a regular entrant in the competition is that channels in countries such as Libya, Jordan and Morocco are also members of the EBU, and technically could enter if they wish. Morocco did, in 1980). Since 2000, the spread of winners between Western Europe, the former Soviet states, and the Balkans and Turkey have been pretty much even.
While some of the geopolitics will always be with us — Turkey and Azerbaijan united in their hatred of Armenia, Cyprus and Greece douze-pointsing each other at every opportunity — the once-derided contest has in fact functioned as a genuine competition. Year in, year out, the best song in the competition tends to win, while the laziest entrants, not taking the event seriously as a songwriting competition (yes, we’re looking at you, Britain), tend to fall behind and then complain that Europe doesn’t “get” pop music.
The best songs and singers triumph, by and large. But Eurovision still does have a political edge.
Take Tuesday’s semi-final in Copenhagen. Russia’s entry, Shine, performed by the Tolmachevy Sisters and described by Popbitch as sounding like “almost every Eurovision song you’ve ever imagined” contained some unintentionally ominous lines:
Living on the edge / closer to the crime / cross the line a step at a time
Add an “a” to the end of that “crime”, and you’ve got the Kremlin’s current foreign policy neatly summed up in a single stanza.
I am not suggesting that the Tolmachevys were sent out to justify Putin’s expansionism. Nonetheless, the Copenhagen crowd were keen that Russia should know what the world thought of its foreign policy and domestic human rights record: as it was announced that Russia had made Saturday’s grand final, the arena erupted in jeering. The dedicated Eurovision fan is clearly not just a poppet living in a fantasy world of camp. They are engaged with the world, and particularly the regressive policies of countries such as Russia, Azerbaijan and Belarus, perhaps more so than your average European.
When Sweden’s Loreen won the competition in Baku, capital of Azerbaijan, in 2012, she pledged to meet the country’s human rights activists. That same year, BBC commentator “Doctor Eurovision” (he actually is a doctor of Eurovision) made explicit references to Belarus’s disgraceful dictatorship, rather than simply giggle at the funny eastern Europeans.
This raises an interesting question about how we engage with dubious regimes.
Before the Baku Eurovision in 2012, there was some discussion over whether democratic countries should boycott the competition, sending a message to Aliyev’s regime.
“No,” Azerbaijani civil rights activists told Index on Censorship. “Let the world come and see Azerbaijan.” They felt that for most of the world, most of the time, they are citizens of a far away country of whom we know nothing. They wanted to take their chance while the world was looking. I think they got it right. As discussed last week, Azerbaijan is engaged in a massive international PR campaign, but to most people in the world since that Eurovision and the attention it raised for the country’s opposition, it has not been able to entirely disguise its atrocious record on free speech and other rights.
On Friday, the International Ice Hockey Federation’s world championship will open in Belarus. Though there was some discussion of boycotting that event, it has died down. Nonetheless, journalists from Europe and North America will be covering the event, and fans will travel too.
Belarus’s macho dictator Alexander Lukashenko is a keen ice hockey fan, and will be aiming to sweep up the glory of hosting a major international sporting event, not long after the country hosted the world track cycling championships in 2013.
Ice hockey fans and sports journalists are generally not the type of people who go in for Eurovision. But maybe they should try to take a leaf out of the Song Contest supporters book. Have a look at the country around them, learn a little about the politics, and spread the word about the side the dictators don’t want us to see.
Autocrats try to use these international competitions to control the world’s view of them. We should beat them at their own games.
This article was posted on May 8, 2014 at indexoncensorship.org
06 Jan 14 | Europe and Central Asia, News and features
In France, Bob Dylan is being officially investigated for “incitement to hatred” against Croats for comparing their relationship to Serbs with that between Nazis and Jews in an interview.
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression.
Freedom of information
Freedom of information is an important aspect of the right to freedom of expression. Without the ability to access information held by states, individuals cannot make informed democratic choices. Many EU member states have failed to adequately protect freedom of information and the Commission has been criticised for its failure to adequately promote transparency and uphold its commitment to freedom of information.
When it comes to assessing global protection for access to information, not one European Union member state ranks in the list of the top 10 countries, while increasingly influential democracies such as India do. Two member states, Cyprus and Spain, are still without any freedom of information laws. Of those that do, many are weak by international standards (see table below).
In many states, the law is not enforced properly. In Italy, public bodies fail to respond to 73% of requests.
The Council of Europe has also developed a Convention on Access to Official Documents, the first internationally binding legal instrument to recognise the right to access the official documents of public authorities. Only seven EU member states have signed up the convention.
Since the Lisbon Treaty came into force, both member states and EU institutions are both bound by freedom of information commitments. Article 42 (the right of access to documents) of the European Charter of Fundamental Rights now recognises the right to freedom of information for EU documents as a fundamental human right Further, specific rights falling within the scope of freedom of information are also enshrined in Article 41 of the Charter (the right to good administration).
As a result, the European Commission has embedded limited access to information in its internal protocols. Yet, while the European Parliament has reaffirmed its commitment to give EU citizens more access to official EU documents, it is still the case that not all EU institutions, offices, bodies and agencies are acting on their freedom of information commitments. The Danish government used their EU presidency in the first half of 2012 to attempt to forge an agreement between the European Commission, the Parliament and member states to open up public access to EU documents. This attempt failed after a hostile response from the Commission. Attempts by the Cypriot and Irish presidencies to unblock the matter in the Council also failed.
This lack of transparency can and has impacted on public’s knowledge of how decisions that affect human rights have been made. The European Ombudsman, P. Nikiforos Diamandouros, has criticised the European Commission for denying access to documents concerning its view of the United Kingdom’s decision to opt out from the EU Charter of Fundamental Rights. In 2013, Sophie in’t Veld MEP was barred from obtaining diplomatic documents relating to the Commission’s position on the proposed Anti-Counterfeiting Trade Agreement (ACTA).
Hate speech
Across the European Union, hate speech laws, and in particular their interpretation, vary with regard to how they impact on the protection for freedom of expression. In some countries, notably Poland and France, hate speech laws do not allow enough protection for free expression. The Council of the European Union has taken action on combating certain forms and expressions of racism and xenophobia by promoting use of the criminal law within nation states in its 2008 Framework Decision. Yet, the Framework Decision failed to adequately protect freedom of expression in particular on controversial historical debate.
Throughout European history, hate speech has been highly problematic, from the experience and ramifications of the Holocaust through to the direct incitement of ethnic violence via the state run media during wars in the former Yugoslavia. However, it is vital that hate speech laws are proportionate in order to protect freedom of expression.
On the whole, the framework for the regulation of hate speech is left to the national laws of EU member states, although all member states must comply with Articles 14 and 17 of the ECHR.[1] A number of EU member states have hate speech laws that fail to protect freedom of expression –- in particular in Poland, Germany, France and Italy.
Article 256 and 257 of the Polish Criminal Code criminalise individuals who intentionally offend religious feelings. The law criminalises public expression that insults a person or a group on account of national, ethnic, racial, or religious affiliation or the lack of a religious affiliation. Article 54 of the Polish Constitution protects freedom of speech but Article 13 prohibits any programmes or activities that promote racial or national hatred. Television is restricted by the Broadcasting Act, which states that programmes or other broadcasts must “respect the religious beliefs of the public and respect especially the Christian system of values”. In 2010, two singers, Doda and Adam Darski, where charged with violating the criminal code for their public criticism of Christianity.[2] France prohibits hate speech and insult, which are deemed to be both “public and private”, through its penal code[3] and through its press laws[4]. This criminalises speech that may have caused no significant harm whatsoever to society, which is disproportionate. Singer Bob Dylan faces the possibility of prosecution for hate speech in France. The prosecutor’s office in Paris confirmed that Dylan has been placed under formal investigation by Paris’s Main Court for “public injury” and “incitement to hatred” after he compared the relationship between Croats and Serbs to that of Nazis and Jews.
The inclusion of incitement to hatred on the grounds of sexual orientation into hate speech laws is a fairly recent development. The United Kingdom’s hate speech laws contain specific provisions to protect freedom of expression[5] but these provisions are not absolute. In a landmark case in 2012, three men were convicted after distributing leaflets in Derby depicting a mannequin in a hangman’s noose and calling for the death sentence for homosexuality. The European Court of Human Rights ruled on this issue in its landmark judgment Vejdeland v. Sweden, which upheld the decision reached by the Swedish Supreme Court to convict four individuals for homophobic speech after they distributed homophobic leaflets in the lockers of pupils at a secondary school. The applicants claimed that the Swedish Supreme Court’s decision to convict them constituted an illegitimate interference with their freedom of expression. The ECtHR found no violation of Article 10, noting even if there was, the interference served a legitimate aim, namely “the protection of the reputation and rights of others”.
The widespread criminalisation of genocide denial is a particularly European legal provision. Ten EU member states criminalise either Holocaust denial, or the denial of crimes committed by the Nazi and/or Communist regimes. At EU level, Germany pushed for the criminalisation of Holocaust denial, culminating in its inclusion from the 2008 EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. Full implementation of the Framework Decision was blocked by Britain, Sweden and Denmark, who were rightly concerned that the criminalisation of Holocaust denial would impede historical inquiry, artistic expression and public debate.
Beyond the 2008 EU Framework Decision, the EU has taken specific action to deal with hate speech in the Audiovisual Media Service Directive. Article 6 of the Directive states the authorities in each member state “must ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality”.
Hate speech legislation, particularly at European Union level, and the way this legislation is interpreted, must take into account freedom of expression in order to avoid disproportionate criminalisation of unpopular or offensive viewpoints or impede the study and debate of matters of historical importance.
[1] ‘Article 14 – discrimination’ contains a prohibition of discrimination; ‘Article 17 – abuse of rights’ outlines that the rights guaranteed by the Convention cannot be used to abolish or limit rights guaranteed by the Convention.
[2] The police charged vocalist and guitarist Adam Darski of Polish death metal band Behemoth with violating the Criminal Code for a performance in 2007 in Gdynia during which Darski allegedly called the Catholic Church “the most murderous cult on the planet” and tore up a copy of the Bible; singer Doda, whose real name is Dorota Rabczewska, was charged with violating the Criminal Code for saying in 2009 that the Bible was “unbelievable” and written by people “drunk on wine and smoking some kind of herbs”.
[3] Article R625-7
[4] Article 24, Law on Press Freedom of 29 July 1881
[5] The Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 by adding Part 3A[12] to criminalising attempting to “stir up religious hatred.” A further provision to protect freedom of expression (Section 29J) was added: “Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”
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’).
