01 Nov 23 | Europe and Central Asia, News and features
Index on Censorship continues to have serious concerns about the EU plans for political advertising rules and the chilling effect on freedom of expression. Our CEO, Ruth Anderson, has written to the Presidents of the Council of the European Union, the European Commission and the European Parliament to urge a pause and a rethink ahead of the 2024 Elections.
Senor Pedro Sanchez MP, President, Council of the European Union
Ursula von der Leyen, President, European Commission
Roberta Metsola MEP, President of the European Parliament
Monday, 30th October 2023
Dear Presidents,
A free and fair election is the cornerstone of a vibrant and functioning democracy. It is a right we all defend and it is what sets us apart from tyrants and demagogues.
With the continuing advancement of digital campaigning and with more citizens consuming their news via digital platforms, it is entirely understandable that the European Union would seek to safeguard future elections with new protections.
However any changes have to be considered through the prism of the shared fundamental right of freedom of expression. More than half of the citizens of the world now live in regimes where that freedom is constantly under threat. Like free and fair elections, the right to freedom of expression is something we must all cherish and defend.
Index on Censorship, as a leading global advocate group for freedom of expression, continues to have serious concerns about the chilling effect that the proposed European Political Advertising regulations could have on freedom of expression.
Whether it is journalists, civil society campaigners or politicians – it remains our position that each will see their freedom of expression curtailed as a result of your proposals.
Our analysis is still that the system of flagging is open to abuse, the scope of the proposals would capture and silence too many voices seeking to share their lawful opinions and the requirements placed on large digital platforms to examine and remove content places too great a responsibility in the hands of unaccountable organisations and opaque algorithms.
I do not doubt for one second the sincerity with which the European Union has approached the task of safeguarding elections from foreign interference. However, it is clear from the continuing tone of the debate and the stalemate that exists during the trialogues that consensus is still far away.
The worst decision that the European Union could now make is to rush through contentious rules ahead of the June elections. The European Union elections are the second biggest exercise of democratic rights in the world – it would be a disaster to impose new rules so close to these elections when those rules do not command a broad consent from participants.
The complex nature of current events rightly commands attention from the EU and represents a more immediate demand on time and resources.
Index on Censorship would urge the EU to take a moment and pause, in order to consider how best to safeguard both the right to a free and fair election alongside the right to freedom of expression. Do not be forced by time to rush into force, rules which have yet been agreed or tested. To do so now would be a dereliction of our collective duty to protect our basic rights.
Index on Censorship remains ready to help the European Union navigate the complex nature of freedom of expression and I hope we can continue to work together to safeguard our hard-won – but fragile – freedoms.
Yours sincerely,
Ruth Anderson
CEO, Index on Censorship.
21 Jul 23 | News and features, Opinion, Ruth's blog, Spain
Threats to freedom of speech can come from a variety of places. Sometimes it is tyrants seeking to crush dissent. But it can also come from well-meaning attempts to improve society, that come with unintended consequences. The European Union is currently discussing ways of regulating online political advertising and is in danger of creating mechanisms which will have a chilling effect on freedom of speech.
So as Spain assumes the rotating presidency of the EU, now is the time to take stock, reflect on debates so far and recommit the European Union as an ally of freedom of expression. I’ve written to the Prime Minister of Spain urging a rethink.
Dear Senor Sanchez,
With Spain having assumed the Presidency of the Council of the European Union, it is an opportune moment for the European Union to reflect on the draft Political Advertising regulations.
Index on Censorship has raised a series of concerns about the impact that the proposals will have on free speech and the power that it places in the hands of tech companies to arbitrate on what is and what isn’t legitimate free expression.
We know that countering disinformation and bringing transparency to political processes is good for democracy. We support that activity around the world where dissidents are using their voice to stand up against totalitarian regimes.
Unfortunately, the draft proposals which are currently being considered in trialogue have the potential to have a chilling effect on free speech across the European Union.
We have welcomed the recognition by the European Union that any new rules governing political advertising in the digital sphere should only apply to content promoted through paid-for political advertising services.
The original “catch-all” proposals would have wrongly sought to impose restrictions on journalists, individual citizens expressing their own point of view and/or civil society campaigns seeking to promote a cause or policy.
It would have seen unacceptable interference into free speech and free expression with the work of journalists, reporting on elections or referendums, subject to state-determined censorship administered by algorithms within big tech corporations.
Imagine if, in your own upcoming general election, a citizen wishing to express how they intend to vote via their own social media had to be regulated? It would reduce the citizen’s right to speak their mind.
However, while some advancement has been made on the scope of the proposals, we still have serious concerns about the processes for flagging content, how that should be regulated and how the proposals will safeguard against bad faith actors.
Platforms are risk adverse and when faced with new rules requiring them to consider concerns raised about content or face fines themselves, bad faith actors will overwhelm those systems and subsequently content will be removed while it is assessed.
Misuse and these unintended consequences will be the tools of censorship for those seeking to silence dissent and close down campaigns and campaigners they disagree with.
As you assess your priorities for the Spanish Presidency of the Council of the European Union, I would urge you to be an ally for freedom of expression.
Yours sincerely
Ruth Anderson
23 Jun 23 | News and features, Opinion, Ruth's blog
The cornerstone of any functioning democracy is the ability to speak freely without fear or favour and to be confident that your right to say it is inalienable.
Index on Censorship has spent years working with dissidents in repressive countries where speaking out can lead to anything from banishment from your home to state-sponsored abduction and execution. Our work started with materials smuggled out of the USSR – published and translated – and smuggled back into the Soviet bloc so that different opinions and divergent points of view could have a platform on which they could be heard.
Today, we do the same in Hong Kong, Russia, Belarus, Iran and Afghanistan where we support the rights of citizens to use their freedom of speech and freedom of expression to challenge those who seek to crush dissent and disagreement.
The principle of free speech is one worth fighting for and defending whenever it comes under attack.
This principle is even greater when engaging in lawful and legitimate democratic activities whether that be campaigning on a single issue or seeking voter support in elections.
In recent years, the way we engage with voters has changed – dramatically. Long gone are the days when town hall meetings, articulate speakers and well-designed printed materials were the best mechanisms for getting your message out.
Now a huge amount of the activity is digital, undertaken from a computer screen with complex and sophisticated targeting of bespoke policy offers to the exact voters needed to build a winning coalition. The advancement of technology has greatly outpaced existing political regulations and opened new opportunities for bad faith actors and unfriendly foreign governments to interfere in domestic elections.
Rightly, governments around the world are looking at how they create a level playing field against the new platforms available and secure the integrity of their election processes.
However, any new regulation has the possibility of impinging on free speech and free expression, usually as an unintended consequence of a well-intentioned proposal.
And this is where there exist dangers in the proposals by the European Union to regulate political advertising.
The proposals for regulations on the transparency and targeting of political advertising are now in the critical trialogue phase, with the European Commission, Council and Parliament thrashing out compromises to reach a series of new rules they all broadly agree on.
The problems arise from the broad scope of what is being proposed and mechanisms that will be built into the regulations to enforce it. Both offer huge challenges to freedom of speech and freedom of expression and require considered thought by lawmakers in the EU.
The original scope drew little distinction between political advertising and political speech. Some changes along the legislative pathway have constrained, slightly, the scope, but Article 2 still defines political advertisement as:
“the preparation, placement, promotion, publication or dissemination, by any means, of a message: (a)by, for or on behalf of a political actor, unless it is of a purely private or a purely commercial nature; or (b)which is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour.”
Such a wide-ranging scope would mean that any attempt to promote this article – an opinion piece by a campaign group on a subject of regulation – would fall into the scope of the regulations and, ironically, a free speech organisation could find themselves either censored or denied our right to express our views.
Of course, every campaign attracts media attention and there has been little commentary or clarification as to how these regulations would apply. Does a journalist discussing the latest policy announcement by an opposition political party now count as ‘disseminating a message by a political actor’? Does live coverage of a climate protest or a campaign stunt by pro-life groups constitute ‘promotion of a political actor which is liable to influence the outcome of an election or referendum’?
Do we really want to be concerned that our news outlets are resorting to self-censorship through fear of state-mandated regulation? I am certain that no EU member state would wish for that but the unintended consequences of attempts to regulate free speech could do just that.
But Article 2 is not the only place where freedom of speech is undermined by these proposals.
The enforcement of these rules will, in part, be down to individuals ‘flagging’ content that they believe is in breach of the rules. Big tech platforms will then have to ‘examine and address’ the notifications they receive.
While having mechanisms to allow for content to be considered – again new rules are sensible – these proposals make big tech platforms the arbiter of what is and what isn’t acceptable political speech. It places a huge amount of power to regulate our freedom of speech in the hands of very large online platforms with little clarity or transparency of how they will consider the flags they receive.
During regulated periods ahead of elections, those platforms will have to process those flags within 48 hours – with failure to consider the flags or enforce the rules opening them to potential liability and penalty.
The inevitable outcome of this is that during elections, big tech platforms will act overly cautiously, and flagged materials will be removed to prevent the platform from being exposed. And once that happens, the floodgates will open for retaliatory ‘flagging’ between rival positions.
Bad-faith actors will happily target politicians and those whose political positions they oppose with vexatious and numerous flags in order to silence them. You can easily foresee a situation where political content from smaller groups are mass-flagged and their views and opinions removed from the digital sphere while they are examined and considered.
The protection of freedom of speech is a core tenet of our political systems just as much as ensuring transparency and accountability in political activity. One need not be at the expense of the other.
The Commission, Council and Parliament can find a solution that protects the founding principles of the Union – fair elections and freedom of speech.
