27 Dec 13 | Digital Freedom, Europe and Central Asia, European Union, News and features, Politics and Society, Religion and Culture
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression.
Since the entering into force of the Lisbon Treaty on 1 December 2009, which made the EU Charter of Fundamental Rights legally binding, the EU has gained an important tool to deal with breaches of fundamental rights.
The Lisbon Treaty also laid the foundation for the EU as a whole to accede to the European Convention on Human Rights. Amendments to the Treaty on European Union (TEU) introduced by the Lisbon Treaty (Article 7) gave new powers to the EU to deal with state who breach fundamental rights.
The EU’s accession to the ECHR, which is likely to take place prior to the European elections in June 2014, will help reinforce the power of the ECHR within the EU and in its external policy. Commission lawyers believe that the Lisbon Treaty has made little impact, as the Commission has always been required to assess whether legislation is compatible with the ECHR (through impact assessments and the fundamental rights checklist) and because all EU member states are also signatories to the Convention.[1] Yet external legal experts believe that accession could have a real and significant impact on human rights and freedom of expression internally within the EU as the Court of Justice of the European Union (CJEU) will be able to rule on cases and apply European Court of Human Rights jurisprudence directly. Currently, CJEU cases take approximately one year to process, whereas cases submitted to the ECHR can take up to 12 years. Therefore, it is likely that a larger number of freedom of expression cases will be heard and resolved more quickly at the CJEU, with a potential positive impact on justice and the implementation of rights in the EU.[2]
The Commission will also build upon Council of Europe standards when drafting laws and agreements that apply to the 28 member states. Now that these rights are legally binding and are subject to formal assessment, this may serve to strengthen rights within the Union.[3] For the first time, a Commissioner assumes responsibility for the promotion of fundamental rights; all members of the European Commission must pledge before the Court of Justice of the European Union that they will uphold the Charter.
The Lisbon Treaty also provides for a mechanism that allows European Union institutions to take action, whether there is a clear risk of a “serious breach” or a “serious and persistent breach”, by a member state in their respect for human rights in Article 7 of the Treaty of the European Union. This is an important step forward, which allows for the suspension of voting rights of any government representative found to be in breach of Article 7 at the Council of the European Union. The mechanism is described as a “last resort”, but does potentially provide leverage where states fail to uphold their duty to protect freedom of expression.
Yet within the EU, some remained concerned that the use of Article 7 of the Treaty, while a step forward, is limited in its effectiveness because it is only used as a last resort. Among those who argued this were Commissioner Reding, who called the mechanism the “nuclear option” during a speech addressing the “Copenhagen Dilemma” (the problem of holding states to the human rights commitments they make when they join). In March 2013, in a joint letter sent to Commission President Barroso, the foreign ministers of the Netherlands, Finland, Denmark and Germany called for the creation of a mechanism to safeguard principles such as democracy, human rights and the rule of law. The letter argued there should be an option to cut EU funding for countries that breach their human rights commitments.
It is clear that there is a fair amount of thinking going on internally within the Commission on what to do when member states fail to abide by “European values”. Commission President Barroso raised this in his State of the Union address in September 2012, explicitly calling for “a better developed set of instruments” to deal with threats to these rights.
This thinking has been triggered by recent events in Hungary and Italy, as well as the ongoing issue of corruption in Bulgaria and Romania, which points to a wider problem the EU faces through enlargement: new countries may easily fall short of both their European and international commitments.
Full report PDF: Time to Step Up: The EU and freedom of expression
Footnotes
[1] Off-record interview with a European Commission lawyer, Brussels (February 2013).
[2] Interview with Prof. Andrea Biondi, King’s College London, 22 April 2013.
[3] Interview with lawyer, Brussels (February 2013).
20 Dec 13 | News and features, Politics and Society, Ukraine
(Photo: Anatolii Stepanov / Demotix)
The coverage of Ukrainian protests in the Russian media suggests a centralised anti-EU message and has provoked outrage in Kiev.
At first, Russian TV channels appeared to broadcast inaccuracies only on the numbers taking part in the demonstrations. Despite clear evidence on the ground that tens of thousands or even hundreds of thousands were taking part, Russian reporters described scenes as “a few hundred protesters.”
Russia’s state-run First Channel then chose to dramatise Ukraine’s alleged descent into anarchy with a montage depicting combat scenes from Yugoslavia in the early 1990s, accompanied by a morbid musical soundtrack.
Komsomolskaya Pravda, a popular Russian daily, led on Tuesday with “Ukraine may split into several parts” with an illustrative map to depict the predicted chaos. The next day, a headline read “Western Ukraine is preparing for civil war.”
Overall – the message from the state-controlled Russian media seems to have been – “Ukraine is suffering at the fate of dangerous opposition militants.”
Putin has lent his weight to the propaganda, describing unrest in Kiev as “more of a pogrom than a revolution” and calling protesters “well-prepared and trained militant groups.”
“Ukraine is like a liner going in a circle,” commented a high-profile Russian journalist this week. “The passengers are calmed by the fact that Europe is near, there is not far to go. In reality the economic collapse of the whole country lies ahead…Passengers will be hurt. Some will not survive.”
The journalist quoted is Dmitry Kiselyov, who Vladimir Putin recently named as head of a re-launched Russia Today — as part of the take-over of previous state broadcaster RIA Novosti.
The shutdown of RIA Novosti was seen as a further degradation in the impartiality of the Russian media — despite being state-owned it had offered some balanced reporting on Russian domestic and foreign policy.
Media analysts in Russia have commented that Kiseylov’s appointment to Russia Today, now the sole government news agency, may have derived from his loyal allegiance to Putin and his ability to propagandise in his favour.
In support of recent anti-homosexual legislation passed by the Russian government, Kiselyov had commented.
“Fining gays is not sufficient -– they should not be allowed to give blood, or sperm and in case of a car accident, their hearts should be burnt or buried as useless”
Kiselyov’s assessment on Maidan went further than his dubious ship analogy — suggesting on his weekly TV show that Sweden, Lithuania and Poland may be manipulating events behind the scenes as revenge for a battle the Russians won in the early 18th century, a battle that happened to be fought in present-day Ukraine.
“It looked like thirst for revenge for Poltava,” argued Kiseylov, citing the name of a battle that took place in 1709.
He then labelled Ukrainian opposition leader and boxer Vitali Klitschko, and his brother Vladimir, as “gay icons,” before describing the “ancient African military techniques,” which the protesters were apparently employing.
He also accused protesters of aggressively firing tear gas at police (when multiple Ukrainian and European media sources confirmed the opposite was correct), and said that opposition leaders had brought students to the protest as sacrificial lambs for the security forces. In fact, police had gone out and savagely beaten groups of students hours before.
Finally, he describes the “writers” of the revolution as a Ukrainian-American-European conspiracy, against Russia.
Skewed Russian coverage has not gone unnoticed in Ukraine. A journalist interrupted a live broadcast from Rossiya 24 – handing over a fake “Oscar” statue in recognition of the “lies and nonsense” that was being reported.
Before being pushed off frame, the Ukrainain Vitaly Sedyuk was able to blurt out “We love Russians but after the way you covered events….”
The Russian reporter ended his piece still holding the fake Oscar statue in his hand.
In contrast to relatively objective reporting in Ukraine, the reporting of Kiseylov and other Russians, combined with a media landscape which has now lost most of its independent voices, indicates the strongest move yet towards total state control of the Russian media.
This article was published on 20 Dec, 2013 at indexoncensorship.org
12 Dec 13 | Digital Freedom Reports, Europe and Central Asia, European Union, Index Reports, News and features, Politics and Society
As Ukraine experiences ongoing protests over lack of European integration, Index’ new report looks at the EU’s relationship with freedom of expression (Photo: Anatolii Stepanov / Demotix)
Index on Censorship’s policy paper, Time to Step Up: The EU and freedom of expression, looks at freedom of expression both within the European Union’s 28 member states, which with over 500 million people account for about a quarter of total global economic output, but also how this union defends freedom of expression in the wider world. States that are members of the European Union are supposed to share “European values”, which include a commitment to freedom of expression. However, the way these common values are put into practice vary: some of the world’s best places for free expression are within the European Union – Finland, Netherlands, Denmark and Sweden – while other countries such as Italy, Hungary, Greece and Romania lag behind new and emerging global democracies.
This paper explores freedom of expression, both at the EU level on how the Commission and institutions of the EU protect this important right, but also across the member states. Firstly, the paper will explore where the EU and its member states protect freedom of expression internally and where more needs to be done. The second section will look at how the EU projects and defends freedom of expression to partner countries and institutions. The paper will explore the institutions and instruments used by the EU and its member states to protect this fundamental right and how they have developed in recent years, as well as the impact of these institutions and instruments.
Outwardly, a commitment to freedom of expression is one of the principle characteristics of the European Union. Every European Union member state has ratified the European Convention on Human Rights (ECHR); the International Covenant on Civil and Political Rights (ICCPR) and has committed to the Universal Declaration of Human Rights. To complement this, the Treaty of Lisbon has made the EU Charter of Fundamental Rights legally binding which means that the EU institutions and member states (if they act within the scope of the EU law) must act in compliance with the rights and principles of the Charter. The EU has also said it will accede to the ECHR. Yet, even with these commitments and this powerful framework for defending freedom of expression, has the EU in practice upheld freedom of expression evenly across the European Union and outside with third parties, and is it doing enough to protect this universal right?
Within the European Commission, there has been considerable analysis about what should be done when member states fail to abide by “European values”, Commission President Barroso raised this in his State of the Union address in September 2012, explicitly calling for “a better developed set of instruments” to deal with threats to these perceived values and the rights that accompany them. With threats to freedom of expression increasing, it is essential that this is taken up by the Commission sooner rather than later.
To date, most EU member states have failed to repeal criminal sanctions for defamation, with only Croatia, Cyprus, Ireland and the UK having done so. The parliamentary assembly of the Council of Europe called on states to repeal criminal sanctions for libel in 2007, since then little action has been taken by EU member states. There also remain significant issues in the field of privacy law and freedom of information across the EU.
While the European Commission has in the past tended to view its competencies in the field of media regulation as limited, due to the introduction of the Charter of Fundamental Rights into EU primary law, the Commission is looking at a possible enhancement of its role in this area.
With media plurality limited across Europe and in fact potentially threatened by the convergence of media across media both online and off (and the internet being the most concentrated media market), the Commission must take an early view on whether it wishes to intervene more fully in this field to uphold the values the EU has outlined. Political threats against media workers are too commonplace and risks to whistleblowers have increased as demonstrated by the lack of support given by EU member states to whistleblower Edward Snowden. That the EU and its member states have so clearly failed one of the most significant whistleblowers of our era is indicative of the scale of the challenge to freedom of expression within the European Union.
The EU and its member states have made a number of positive commitments to protect online freedom, including the EU’s positioning at WCIT, the freedom of expression guidelines and the No-Disconnect strategy helping the EU to strengthen its external polices around promoting digital freedom. These commitments have challenged top-down internet governance models, supported the multistakeholder approach, protected human rights defenders who use the internet and social media in their work, limited takedown requests, filters and others forms of censorship. But for the EU to have a strong and coherent impact at the global level, it now needs to develop a clear and comprehensive digital freedom strategy. For too long, the EU has been slow to prioritise digital rights, placing the emphasis on digital competitiveness instead. It has also been the case that positive external initiatives have been undermined by contradictory internal policies, or a contradiction of fundamental values, at the EU and member state level. The revelations made by Edward Snowden show that EU member states are violating universal human rights through mass surveillance.
The Union must ensure that member states are called upon to address their adherence to fundamental principles at the next European Council meeting. The European Council should also address concerns that external government surveillance efforts like the US National Security Agency’s Prism programme are undermining EU citizens’ rights to privacy and free expression. A comprehensive overarching digital freedom strategy would help ensure coherent EU policies and priorities on freedom of expression and further strengthen the EU’s influence on crucial debates around global internet governance and digital freedom. With the next two years of ITU negotiations crucial, it’s important the EU takes this strategy forward urgently.
While the European Commission has in the past tended to view its competencies in the field of media regulation as limited, due to the introduction of the Charter of Fundamental Rights into EU primary law, the Commission is looking at a possible enhancement of its role in this area.
With media plurality limited across Europe and in fact potentially threatened by the convergence of media across media both online and off (and the internet being the most concentrated media market), the Commission must take an early view on whether it wishes to intervene more fully in this field to uphold the values the EU has outlined.
Political threats against media workers are too commonplace and risks to whistleblowers have increased as demonstrated by the lack of support given by EU member states to whistleblower Edward Snowden. That the EU and its member states have so clearly failed one of the most significant whistleblowers of our era is indicative of the scale of the challenge to freedom of expression within the European Union.
Where the EU acts with a common approach among the member states, it has significant leverage to help promote and defend freedom of expression globally. To develop a more common approach, since the Lisbon Treaty, the EU has enhanced its set of policies, instruments and institutions to promote human rights externally, with new resources to do so. Enlargement has proved the most effective tool to promote freedom of expression with, on the whole, significant improvements in the adherence to the principles of freedom of expression in countries that have joined the EU or where enlargement is a real prospect. That this respect for human rights is a condition of accession to the EU shows that conditionality can be effective. Whereas the eastern neighbourhood has benefitted from the real prospect of accession (for some countries), in its southern neighbourhood, the EU has failed to promote freedom of expression by placing security interests first and also by failing to react quickly enough to the transitions in its southern neighbourhood following the events of the Arab Spring. The new strategy for this region is welcome and may better protect freedom of expression, but with Egypt in crisis, the EU may have acted too late. The EU must assess the effectiveness of some of its foreign policy instruments, in particular the dialogues for particular countries such as China.
The freedom of expression guidelines provide an excellent opportunity to reassess the criteria for how the EU engages with third party countries. Strong freedom of expression guidelines will allow the EU to better benchmark the effectiveness of its human rights dialogues. The guidelines will also reemphasise the importance of the EU, ensuring that the right to freedom of expression is protected within the EU and its member states. Otherwise, the ability of the EU to influence external partners will be limited.
Headline recommendations
• After recent revelations about mass state surveillance the EU must develop a roadmap that puts in place strong safeguards to ensure narrow targeted surveillance with oversight not mass population surveillance and must also recommit to protect whistle-blowers
• The European Commission needs to put in place controls so that EU directives cannot be used for the retention of data that makes mass population surveillance feasible
• The EU has expanded its powers to deal with human rights violations, but is reluctant to use these powers even during a crisis within a member state. The EU must establish clear red lines where it will act collectively to protect freedom of expression in a member state
• Defamation should be decriminalised across the EU
• The EU must not act to encourage the statutory regulation of the print media but instead promote tough independent regulation
• Politicians from across the EU must stop directly interfering in the workings of the independent media
• The EU suffers from a serious credibility gap in its near neighbourhood – the realpolitik of the past that neglected human rights must be replaced with a coherent, unified Union position on how to promote human rights
Recommendations
- The EU has expanded its powers to deal with human rights violations, but is reluctant to use these powers even during a crisis within a member state. The EU must establish clear red lines where it will act collectively to protect freedom of expression in a member state
- The EU should cut funding for member states that cross the red lines and breach their human rights commitments
Libel, privacy and insult
- Defamation should be decriminalised in line with the recommendations of the Council of Europe parliamentary assembly, and the UN and OSCE’s special rapporteurs on freedom of expression.
- Insult laws that criminalise insult to national symbols should be repealed
Freedom of information
- To better protect freedom of information, all EU member states should sign up to the Council of Europe Convention on Access to Official Documents
- Not all EU institutions, offices, bodies and agencies are acting on their freedom of information commitments. More must be done by the Commission to protect freedom of information
Media freedom & plurality
- The EU must revisit its competencies in the area of media regulation in order to prevent the most egregious breaches of the right to freedom of expression in particular the situations that arose in Italy and Hungary
- The EU must argue against statutory regulation of the print media and argue for independent self-regulation where media bandwidth is no longer limited by spectrum and other considerations
- Member states must not allow political interference or considerations of “political balance” into the workings of the media, where this happens the EU should be considered competent to act to protect media freedom and pluralism at a state level
- The EU is not doing enough to protect whistleblowers. National states must do more to protect journalists from threats of violence and intimidation
Digital
- The Commission must prepare a roadmap for collective action against mass state surveillance
- The EU is right to argue against top-down state control over internet governance it must find more natural allies for this position globally
- The Commission should proceed with a Directive that sets out the criteria takedown requests must meet and outline a process that protects anonymous whistle-blowers and intermediaries from vexatious claims
The EU and freedom of expression in the world
- The EU suffers from a credibility issue in its southern neighbourhood. To repair its standing in the wider world, the EU and its member states must not downgrade the importance of human rights in any bilateral or multilateral relationship
- The EU’s EEAS Freedom of Expression guidelines are welcome. To be effective, they need to focus on the right to freedom of expression for ordinary citizens and not just media actors
- The guidelines need to become the focus for negotiations with external countries, rather than the under-achieving human rights dialogues
- With criticism of the effectiveness of the human rights dialogues, the EU should look again at how the dialogues fit into the overall strategy of the Union and its member states
The European Union contains some of the world’s strongest defenders of freedom of expression, but also a significant number of member states who fail to meet their European and international commitments. To deal with this, in recent years, the European Union’s member states have made new commitments to better protect freedom of expression. The new competency of the European Court of Justice to uphold the values enshrined in the European Convention of Human Rights will provide a welcome alternative forum to the increasingly deluged European Court of Human Rights. This could have significant implications for freedom of expression within the EU. Internally within the EU there is still much that could be done to improve freedom of expression. It is welcome that that the EU and its member states have made a number of positive commitments to protect online freedom, with new action on vexatious takedown notices and coordinated action to protect the multistakeholder model of internet governance. Increasing Commission concern over media plurality may also be positive in the future.
Yet there are a number of areas where the EU must do more. The decriminalisation of defamation across Europe should be a focal point for European action in line with the Council of Europe’s recommendations. National insult laws should be repealed. The Commission should not intervene to increase its powers over national media regulators, but should act where it has clear competencies, in particular to prevent media monopolies and to help deal with conflict of interests between politicians and state broadcasters. Most importantly, discussions of mass population surveillance at the European Council in October must be followed by a roadmap outlining how the EU will collectively take action on this issue. Without internal reform to strengthen protections for freedom of expression, the EU will not enjoy the leverage it should to promote freedom of expression externally to partner countries. While the External Action Service freedom of expression guidelines are welcome, they must be impressed upon member countries as a benchmark for reform.
Externally, the EU has failed to deliver on the significant leverage it could have as the world’s largest trading block. Where the EU has acted in concert, with clear aims and objectives for partner countries, such as during the process of enlargement, it has had a big impact on improving and protecting freedom of expression. Elsewhere, the EU has fallen short, particularly in its southern neighbourhood and in its relationship with China, where the EU has continued human rights dialogues that have failed to be effective.
New commitments and new instruments post-Lisbon may better protect freedom of expression in the EU and externally. Yet, as the Snowden revelations show, the EU and its member states must do significantly more to deliver upon the commitments that have been agreed.
Full report PDF: Time to Step Up: The EU and freedom of expression
This article was posted on 12 Dec 2013 at indexoncensorship.org
04 Dec 13 | European Union, News and features, Ukraine
Protesters gather in Maidan Nezalezhnosti to register their disapproval of the government’s refusal to sign an association agreement with the European Union and its violent crackdown on peaceful demostrators. (Photo: Andrei Alaiksandrau / Index on Censorship)
Maidan Nezalezhnosti, the Independence Square in the centre of Kiev, leaves mixed impressions of courage and uncertainty. It has become a symbol of determination among ordinary Ukrainians to push for their rights and freedoms – but after the events of the last weekend it has also turned into a powerful reminder of how difficult and even bloody the fight can be.
Mass actions in Ukraine started on 21 November after it became clear that the country’s leaders were not going to sign a much anticipated association agreement with the European Union. The situation escalated after 29 November, when it was confirmed the agreement was not signed during the Eastern Partnership summit in Vilnius. Around 4 a.m. on 30 November riot police violently dispersed protesters from the Independence Square. Dozens of peaceful protesters and journalists were injured. The next day saw one of the largest mass street rallies in Ukrainian history, at least 200,000 people protested against the violent actions of the police. New clashes occurred; protesters and opposition parties called for the government to resign, but the vote of no confidence in the parliament failed. At the moment nobody has a clear answer what comes next.
There are a lot of young people among the protesters. Yuliya, a student of one of Kiev universities, says they are there to “defend their future.” “We want to live in a European country, and feel we are citizens that enjoy rights and freedoms,” she says. Several students said officials at their universities “promised troubles” to those who joined the protests. Some of the student demonstrators told Index that they were threatened with expulsion – but came out into the streets anyway.
Andrii is an employee of an IT firm from Lviv, a regional centres in western Ukraine. He and his friends traveled to Kiev to join the protest for several days during the last two weeks, despite the fact it is more than 500 km drive each way. “It is a crucial time for my country; I cannot just stay home when the fate of my nation is decided. The association agreement with the EU is a historical chance for Ukraine, the chance not to be missed,” he says.
“I went to Maidan, because I want to live in a European country; I want to walk even pavements, drive quality roads, enjoy quality public services for the high taxes I pay – and I don’t want to see my taxes go to pockets of president Yanukovich and his family. Directives of the EU establish quite high requirements for fighting corruption, this is why I support association with the European Union,” says Khrystyna, a lawyer from Kiev.
Roman Romanov, an expert on freedom of assembly with the International Renaissance Foundation, says he has never seen so many people in the streets of Ukraine.
“Now it is not only people who want the association agreement with the EU to be signed. People raise their voice against the police state and brutality against peaceful protesters; they understand that without them speaking out the rule of law will not be restored and justice will not be done,” Roman Romanov says.
Oksana Romaniuk, an executive director of the Institute of Mass Information, a Kiev-based freedom of expression organisation, also sees the difference in how society treats journalists.
“Fifty-one journalists were beaten by riot police in Ukraine between 29 November and 2 December. On the night of 30 November officers of Berkut, a riot police special force, specifically targeted journalists when they were dispersing the protest from the Independence Square. Now local businessmen offer their help to us – they buy first aid kits for journalists and offer money to cover medical treatment for injured reporters. And ordinary people suggest their help, too. I was really moved when a woman came up to me in a bus, as she heard I was ordering protecting helmets and vets for journalists. The lady gave me 200 hryvnias (around £15) and said ‘I have heard how journalists were beaten – please, take this money to help them’. I hope these are the signs that show society understands the importance of journalists’ work to inform people,” Oksana Romaniuk says.
“I did not know I live in a country where a bloody dispersal of a peaceful meeting can happen, where such inhuman brutality against unarmed people and journalists is possible. It is a disgrace for Ukrainian authorities,” she adds.
State officials of Ukraine promise they will make up for this “disgrace” and investigate the violent actions of the police. At the same time, president Yanukovich left for an official visit to China, despite the serious political crisis his country is in. The OSCE Parallel Civil Society conference called the situation in Ukraine “a human dimension crisis.”
“It looks like the authorities want to show they do not care about people that stay at Maidan. It is difficult to say what is going to happen next. I could not believe that happened in my country. Now I don’t see how this crisis is going to be resolved,” says an employee of a Kiev-based human rights organisation.
Last night it was peaceful at Maidan Nezalezhnosti. There was a concert with Ukrainian patriotic songs. People were sitting around fires in barrels; a dozen youngsters decided to warm themselves by playing football just beside a barricade. No police were seen anywhere.
“Would you like a cup of tea?” asked a young Ukrainian girl with a warm smile – she is just walking around Maidan with her boyfriend and a big thermos and offers a free hot drink she made at home to people who came out in a cold night to tell their government they choose a European future for their country. Will they be heard, remains a question.
This article was posted on 4 Dec 2013 at indexoncensorship.org
