19 Jul 13 | Brazil, Campaigns, India, Russia, Volume 42.02 Summer 2013
Index, in partnership with the European Council on Foreign Relations, held a debate launching the latest issue of Index on Censorship magazine looking at the recent protests in Turkey, Russia and Brazil and what they tell us about public attitudes to freedom and rights.
The discussion explored the difficulties in protecting freedom of speech when political and social power is shifting across the globe. Panelists included Index CEO Kirsty Hughes, ECFR Senior Policy Fellow Anthony Dworkin, Keith Best, CEO of Freedom From Torture, and Turkish journalist and writer Ece Temelkuran.
Temelkuran, who has been a vocal critic of Turkish Prime Minister Recep Tayyip Erdoğan, spoke about the decline in media freedom and credibility since the start of anti-government protests in the country:
Dworkin, meanwhile, spoke about anti-government protests, and how they play into the shift in power on the global stage, and also reflect a loss of faith in the democratic process:
Index CEO Kirsty Hughes argued that democracies must work hard to protect free speech, especially when we’ve moved towards a multipolar world:
Keith Best, from Freedom from Torture, argued that the undermined authority of western powers has also meant a rise in impunity for torture:
The panel also discussed the role of technology in shifting the balance of power globally, after an audience member asked whether or not “bottom up politics are weakening the institutions of the state.”:
For a range of in-depth reports and articles on journalism, freedom of speech, censorship and arts check out the latest issue of the magazine here. Be sure to follow @IndexEvents for more updates on our exciting events and discussions
19 Jul 13 | Burma, Index Reports, News and features
Index on Censorship Report: Burma is at a crossroads. The period of transition since 2010 has opened up the space for freedom of expression to an extent unpredicted by even the most optimistic in the country.
The number and range of media in Burma has proliferated
Yet this space is highly contingent on a number of volatile factors: the goodwill of the current President and his associates in Parliament, the ability of Aung San Suu Kyi to assure the military that her potential ascendancy is not a threat to their economic interests and the on-going civil conflicts not flaring into civil war. The restrictive apparatus of the former military state is still available for the government to use to curtail freedom of expression – the most draconian laws are still on the statute book affecting the media, the digital sphere and the arts; police and local authorities have significant discretion when it comes to approving speech and performance, and the judiciary has a limited institutional understanding of freedom of expression. In effect, the old state remains in the shadows – or as one journalist told Index: “the generals have only changed their suits”.
Yet Burma has changed. The country is freer than it was during Index’s mission in 2009, when meetings were held in secret. In March this year, Index co-produced a symposium on artistic freedom of expression with local partners, the first public conversation of its kind in recent history. The abolition of pre-censorship of newspapers and literature, the return of daily newspapers, the release of political prisoners and the open space given to political debate all signal real change. The question for the government and the opposition is: will the transition be sustained with legal and political reform to reinforce the space for freedom of expression and to dismantle the old state apparatus that continues to pose a threat to freedom of expression?
This paper is divided into the following chapters: Burmese politics and society; media freedom; artistic freedom of expression and digital freedom of expression. The report is based on research conducted in the UK and 20 interviews (with individuals and groups) in March 2013 conducted in Mandalay and Yangon. Due to the ongoing possibility of future prosecutions, the interviewees have been kept anonymous.
Politics and society looks at the role of the President, United Solidarity and Development Party (USDP), Aung San Suu Kyi and the National League for Democracy (NLD) and the student movement and freedom of expression, ethnic conflict and the constitution and the need for reform, freedom of association and freedom of assembly.
The media freedom chapter looks at the press council, existing impediments to media freedom, the state of media plurality and self-censorship in the press. The artistic freedom of expression chapter covers theatre and performance art, literature, music and film. Finally, the digital freedom of expression chapter looks at access issues, the impact of new technologies and state censorship on the digital sphere. The report is based on a series of interviews conducted in Rangoon and Mandalay in March 2013, with additional interviews conducted in April 2013 in the same cities.
Recommendations
To maintain the progress of the transition the government of Burma must:
- Prepare a roadmap in this session of parliament that lays out how Burma will reform the legal framework that curtails freedom of expression. The reform must curtail the emergency legislation imposed by the military regime; end the licensing of newspapers and decriminalise defamation, open up access to the internet and remove restrictive laws that penalise its use and annul provisions in the penal code dating from British colonial rule that criminalise political speech and freedom of association. The EU, US and other partners must be prepared to revisit sanctions if the government of Burma fails to deliver this roadmap.
- Abandon the restrictive press law put forward by the Ministry of Information and allow the Press Council to continue to lead on the process of drafting a new legal framework for the press and other media actors.
- Prior to enacting a new legal framework for the press, the use of emergency powers to ban the publication of media in Burma must be stopped.
- Bureaucratic hurdles to freedom of expression should be removed immediately, in particular the requirement for permits for public performances (live music, public art, political readings) to be signed off by multiple layers of government.
- The government should give clear instructions to local police forces that the use of restrictive legislation to stop peaceful public demonstrations is excessive and should be stopped in particular Article 18(b) of the Peaceful Assembly and Peaceful Procession Law and section 505 of the penal code.
NEXT SECTION: Politics and society
Burma: Freedom of expression in transition: Introduction | Politics and society | Media freedom | Artistic freedom of expression | Digital freedom of expression | Conclusion | Full report in PDF format
18 Jul 13 | Americas, Canada, Politics and Society
This year has seen significant developments in Canada’s hate speech legislation, say attorneys Ryder Gilliland and Adam Lazier.
(Wikipedia)
Bill Whatcott is a conservative Christian campaigner who was fined $17,500 dollars in 2005 for distributing hate materials. His case rumbled through the courts until February, when the Supreme Court ruled against him.
In June, however, Parliament voted to repeal a hate speech provision in the federal human rights legislation. This is a significant legislative change, but whether provincial legislatures and courts will follow suit is very much an open question.
The regulation of hate speech in Canada
Hate speech in Canada is regulated in two ways. Section 319 of the Criminal Code makes it an offence to wilfully promote or publicly incite hatred. A violation of Section 319 carries serious consequences, including imprisonment for up to two years. Someone charged criminally under Section 319 has a number of defences available, including “truth”, and that the statements were in the public interest and the accused reasonably believed them to be true.
Hate speech is also prohibited by human rights legislation at both the federal and provincial levels. Human rights legislation carries less serious consequences than the criminal law provisions, but a respondent to a human rights claim has far fewer defences available. Human rights complaints are decided by administrative tribunals rather than courts.
Both types of hate speech legislation have been challenged in court as violations of Canada’s constitutional protection for freedom of expression. These challenges have not met with much success. Although the Supreme Court struck down an antiquated “false news” law used to prosecute holocaust denier Ernst Zundel (R. v. Zundel, [1992] 2 S.C.R. 731), it has upheld the constitutionality of the criminal offence of wilfully promoting hatred (R. v. Keegstra, [1990] 3 S.C.R. 697).
In Whatcott, the Supreme Court largely upheld a hate-speech prohibition in Saskatchewan’s human rights legislation, despite that the provision does not even allow a defence of truth (2013 SCC 11).
The repeal of section 13 of the Canadian Human Rights Act
Just four months after the Whatcott decision parliament voted to repeal section 13 of the Canadian Human Rights Act (the “CHRA”), the federal equivalent to the Saskatchewan law at issue in Whatcott. The repeal comes into effect after one year.
Section 13, which was upheld by the Supreme Court of Canada in 1990, prohibits anyone from repeatedly communicating hate speech over the telephone or internet. The Tribunal can punish contraventions by ordering that the speaker financially compensate the victim. (A provision allowing the Tribunal to also order a $10,000 “penalty” as well was struck down by a 2012 Federal Court decision).
Human Rights Laws: A blunt instrument for regulating speech
Canada’s criminal hate speech laws arguably have a minimal impact on freedom of expression rights, as there is a high burden of proof and there are numerous defences available, including the defence of “truth”. It seems unlikely that mainstream media will be prosecuted, much less prosecuted successfully, under Section 319 of the Criminal Code.
Human rights hate speech laws are different. There are far fewer protections for respondents in human rights cases and the mainstream media has recently had to defend against human rights complaints. Thus, they appear to be a potentially dangerous incursion into free speech territory.
Hate speech laws in human rights legislation rest on a tenuous and sometimes artificial distinction between hate speech and other speech. In the context of libel law, for instance, a speaker has a constitutional right to defences for truth, fair comment, and responsible communication in the public interest. Once statements are classified as “hate speech” in the context of a human rights complaint, however, they lose that protection – a human rights tribunal may order compensation even if the statement is true, and even if it was made in good faith on a matter of public interest.
The line between hate speech and the merely offensive is slippery at best. Whatcott and earlier Supreme Court decisions define hate speech as statements that tend to expose people to “unusually strong and deep-felt emotions of detestation and vilification” on the basis of a prohibited ground of discrimination, which includes things like race, religion, and sexual orientation. However, human rights legislation doesn’t require that anyone prove the statements at issue actually caused hatred. This leaves tribunals and courts guessing about whether the statements at issue could have that effect, or whether they are just “offensive comments or expressions of dislike”.
This combination of strict laws with a slippery definition of hate speech puts everyone’s expression at risk, not just that of extremists. In a recent British Columbia case, the Human Rights Tribunal found that a stand-up comic had engaged in “discriminatory” speech by insulting audience members based on their sexual orientation. The decision was recently upheld by on judicial review (Ismail v. British Columbia (Human Rights Tribunal), 2013 BCSC 1079).
Media organisations have successfully defended against hate speech complaints brought before human rights tribunals, but have incurred significant legal expenses along the way. The imprecise definition of hate speech makes it difficult for the media to assess its risk before publication, and therefore risks chilling debate.
More broadly, freedom of expression relies on courts and legislatures accepting the importance of the “marketplace of ideas”; the notion that society is best served when ideas, even hateful ideas, are disproven through public debate. The “marketplace of ideas” concept formed part of the reasoning behind the Supreme Court’s decision to recognize the responsible communication defence in libel law in 2009 (Grant v. Torstar Corp, 2009 SCC 61). “In the course of debate,” the Court wrote then, “misconceptions and errors are exposed. What withstands testing emerges as truth”.
Hate speech laws in the human rights context, and court decisions that uphold them, are inconsistent with concept of a marketplace of ideas. They threaten free speech. It is encouraging to see parliament repealing section 13 of the CHRA. The question now is who will follow.
Ryder Gilliland is a Toronto-based attorney at Blake, Cassels & Graydon LLP and an executive member of Ad IDEM, the Canadian Media Lawyers Association.
Adam Lazier is an attorney with Blake, Cassels & Graydon LLP.
15 Jul 13 | Burma
Fifty years of authoritarian rule has left its mark on Burmese society affecting the speed and process of transition.
This chapter will explore the political landscape and its potential effect on freedom of expression, the current impact of the government, constitution and judiciary on freedom of expression. Following this the chapter will explore how the ongoing ethnic conflict has impacted upon free speech and how recent developments in the right to freedom of association have affected the ability to protest in Burma.
It is unclear whether the transition to a functioning democracy based on the rule of law and human rights will be completed, or whether the transition will remain incomplete: this will have the largest impact on freedom of expression in Burma in the near-future.
(more…)
