6 Jan 2014 | 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.”
2 Jan 2014 | 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’).
27 Dec 2013 | 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 2013 | 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
