30 May 2014 | About Index, Campaigns
Index reiterates its concern at the ruling on the so-called “right to be forgotten” and its implications for free speech and access to information. Index urges the court to put a stay on its ruling while it pursues a regulatory framework that will provide legal oversight, an appeals process and ensure that private corporations are not the arbiters of public information.
While it is clearly understandable that individuals should want to be able to control their online presence, the court’s ruling fails to offer sufficient checks and balances to ensure that a desire to alter search requests so that they reflect a more “accurate” profile does not simply become a mechanism for censorship and whitewashing of history.
Issued without a clearly defined structure to police the requests, the court ruling has outsourced what should be the responsibility of publicly accountable bodies to private corporations who are under no obligations to protect human rights or act in public interest. Index will be monitoring very closely the processes and procedures used by Google and others to make decisions.
Although Google has devised an advisory committee to support its decision-making, the fact remains that we are in a situation in which search engines will be making decisions about what is deemed “irrelevant and inappropriate” – and a situation that fails to take into account the fact that information deemed “irrelevant” now may become extremely relevant in future.
Index urges the court to go back and reconsider its directions to search engines. It must devise a clear structure for managing requests that balances the public’s right to information, freedom of expression and privacy rights.
For more information call: +44 (0) 207 260 2660
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Both Google and the European Union are funders of Index on Censorship
21 May 2014 | Digital Freedom, European Union, News and features, Politics and Society

You can find support for the public’s right to access official information in the strangest places. Like a private EU policy paper draft. As leaked to and published by the whistle-blowers’ website Wikileaks.
The European Union’s Guidelines on Freedom of Expression Online & Offline started with NGO consultations, but the EU’s top working group on human rights (COHOM) wanted the final drafting work done behind closed doors. Wikileaks thought different and released a leaked draft last month.
Designed to set Europe’s agenda for freedom of expression and media rights, the original draft as leaked promised an EU commitment to the right of access to official information of all kinds. But you won’t find the pledge in the final version, as released by the EU in Brussels last week. It’s been cut.
Not one of the nine new priority areas for EU legislation listed in the final version guidelines supports the adoption of right to information legislation. The document also excludes promotion of access to information rights from its list of “Priority Areas of Action”.
The key deleted reference, Paragraph 14 in the version published by Wikileaks, summarised the principle as the “general right of the public to have access to information of public interest, the right of the media to access information and the right of individuals to request and receive information concerning themselves that may affect their individual rights”. These lines were cut in their entirety.
The original text was in line with an emerging European political and legal consensus that the right to receive official information implies that a state has a positive obligation to make that information available to them. The guidelines have been firmly steered in the opposite direction.
In London, experts blame their own government for setting a bad example. The UK government argues that citizens have the freedom, but not the right, to seek and receive information. On that basis it rejects the idea that there is a positive obligation on its officials to make information available to citizens, only that they should have a good reason for not doing so.
“I’d say that the UK government continues to deny that there is a right to information in any form,” says David Banisar of the free expression rights advocacy group Article 19. What’s changed, he says, is that UK courts are beginning to interpret UK common law in the same way as the European Court in favour of the general principle of a right to request and receive official information.
This threatens the legality of the UK’s habit of giving certain officials immunity from Freedom of Information Act requests under UK common law, even where this is incompatible with European law, as the UK Court of Appeal concluded last month, finding that Attorney General Dominic Grieve acted unlawfully by denying public access to Prince Charles’ official letters to government ministers.
In a similar but separate case Times journalist Dominic Kennedy appealed to the courts when the Charity Commission, the agency that monitors charities in the UK, refused his request under the country’s Freedom of Information Act to see paperwork from its inquiry into the management of maverick politician George Galloway’s Mariam Appeal for Iraq. Last month, after seven years’ deliberations, the courts cleared the way for the Commission to hand over the papers – though they have yet to do so, and it may still take a judicial review to make them.
The ruling in favour of the Times in March came with a similar string of citations from European Court (ECHR) cases that are comfortably in line with this new direction for UK common law. “You can ask for information from a public authority just because it is a public authority and it should act in the public benefit.” Kennedy told the UK Press Gazette after his win.
Kennedy’s lawyer Rupert Earle of Bates Wells Braithwaite says that while the ECHR rulings clearly favour openness, the court’s principal chamber has yet to definitively state that public bodies have a default obligation to provide information, subject to the usual provisos on privacy and security. It was, he thought, only a matter of time before it did though.
But even if the ECHR isn’t yet definitive on the issue and the UK courts take their own line, it isn’t a reason to block efforts to mainstream access to information rights in EU free expression policy.
A number of free expression rights groups have expressed dismay. Most were initially consulted on the paper before the EU took drafting behind closed doors. They say the guidelines as they stand not only fail to recognise the right to access to official information, but also that this right is a key element of freedom of expression rights – seriously undermining the guidelines’ effectiveness.
They are calling on the EU to reconsider the guidelines and address these concerns. “We do not believe the (Guidelines on Freedom of Expression Online & Offline) are complete without a clear reference to the right to information and a commitment to priority action in this area,” said the groups in a letter signed May 21, 2014 by nine groups, including Index on Censorship.
The only reason why we know the EU has cut support for reducing official secrecy is thanks to Wikileaks. That irony alone suggests that there should be a few more gates in the wall surrounding the EU’s secret garden of information.
Citizens who wanted more information from their government, the courts and the scores of quangos that influence our lives, would have benefited had the EU guidelines been allowed to recognise the principle that the right to information should be the default start point, limited only when prescribed by law and “necessary and proportionate” to a legitimate aim. The EU needs to put things right.
This article was published on May 21, 2014 at indexoncensorship.org
21 May 2014 | Campaigns, European Union
On 12 May 2014, the Council of the European Union adopted the EU Human Rights Guidelines on Freedom of Expression: Online and Offline (Guidelines). The initiative to adopt the Guidelines, which provide “political and operational guidance” to EU staff regarding this important area of EU foreign policy and assistance, is welcome.
At the same time, there are certain problems from the perspective of freedom of expression in the Guidelines. It is, in particular, very problematical that the Guidelines fail to recognise the right of the public to access information held by public authorities as an element of the right to freedom expression and as an operational priority for the EU.
This omission seriously undermines the effectiveness of the Guidelines. The right to access information held by public bodies, or the right to information, has been recognised unequivocally at the international and European level, including by the United Nations Human Rights Committee and the European Court of Human Rights, as well as by regional human rights bodies including the African Union and the Organisation of American States. It is not clear why such an important aspect of the right to freedom of expression – an area in which the EU has been active – should have been entirely left out of the Guidelines.
Paragraph 14 of the Guidelines recognise that, in certain circumstances, human rights outcomes may “be assisted” by the disclosure of information held by the State and that this “can serve to promote justice and reparation”, but they fall short of recognising a right to information. The Guidelines also largely fail to recognise promotion of the right to information as a priority area for action, although paragraph 32 does call for support for the adoption of freedom of information laws.
A further concern is that a document of this importance should have been the subject of an open and meaningful process of consultation before it was finalised. Instead, only limited and essentially internal consultations took place. While internal consultations are an appropriate part of the process, the Guidelines should have been the subject of an open public consultation before being adopted in a final version. At a minimum, this would require a formal draft version of the Guidelines to be posted online, with an opportunity for stakeholders to provide comments.
We do not believe the Guidelines are complete without a clear reference to the right to information and a strong commitment to priority action in this area. We therefore call on the relevant EU actors to reconsider the Guidelines with a view to addressing these concerns. Alternatively, we call on the EU to adopt a dedicated set of guidelines on the promotion of the right to information as an element of freedom of expression.
Signatories:
ARTICLE 19
Centre for Law and Democracy
European Federation of Journalists
Free Press Unlimited
Global Forum for Media Development
Index on Censorship
International Media Support
Internews – Europe
Vivarta
For further information please contact:
Caroline Giraud
GFMD Coordinator
Global Form for Media Development
Email: [email protected]
Mob: +32 477 18 56 01
Office: + 32 2 720 26 00
www.gfmd.info
Twitter: @mediagfmd
Skype ID: coordinator.gfmd
Toby Mendel
Executive Director
Centre for Law and Democracy
[email protected]
+1 902 997-1296
+1 902 431-3688
www.law-democracy.org
Twitter: @law_democracy
Skype ID: toby-mendel
15 May 2014 | Europe and Central Asia, European Union, News and features

(Image: Håkan Dahlström)
A new set of guidelines laid out by the EU, and contributed to by Index on Censorship, will specifically look at freedom of expression both online and offline, and includes clauses, among others, on whistleblowers, citizens’ privacy and the promotion of laws that protect freedoms of expression.
According to the Council of the European Union press statement, freedom of opinion should apply to all persons equally, regardless of who they are and where they live, affirming this freedom “must be respected and protected equally online as well as offline”.
Significant consideration within the EU Human Rights Guidelines on Freedom of Expression Online and Offline, adopted on 12 May, is paid to whistleblowers with the council vowing to support any legislation adopted which provides protection for those who expose the misconduct of others, as well as reforming legal protections for journalists’ rights to not have to disclose their sources.
Reinforcing this, the new guidelines enable the Council to help those, journalists or others, who are arrested or imprisoned for expressing their opinions both online and offline, seeking for their immediate release and observing any subsequent trials.
Member states also have an obligation to protect their citizens’ right to privacy. In accordance with article 17 of the International Covenant on Civil and Political Rights (ICCPR), the guidelines claim “no one should be subject to arbitrary or unlawful interference with their privacy“, with legal systems providing “adequate and effective guarantees” on the right to privacy.
The guidelines will provide guidance on the prevention of violations to freedom of opinion and expression and how officials and staff should react when these violations occur. The guidelines also outline the “strictly prescribed circumstances” that freedom of expressions may be limited; for example, operators may implement internet restrictions (blockages etc.) to conform with law enforcement provisions on child abuse. Laws under the new guidelines that do adequately and effectively guarantee the freedom of opinions to all, not just journalists and the media, must be properly enforced.
“Free, diverse and independent media are essential in any society to promote and protect freedom of opinion and expression and other human rights,” according to the Council press release. “By facilitating the free flow of information and ideas on matters of general interest, and by ensuring transparency and accountability, independent media constitute one of the cornerstones of a democratic society. Without freedom of expression and freedom of the media, an informed, active and engaged citizenry is impossible.”
Read the full set of guidelines here.
This article was posted on May 15, 2014 at indexoncensorship.org