24 Jan 19 | Europe and Central Asia, News and features, Turkey, Turkey Uncensored
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Social media apps on phone, Jason Howie/Flickr
After the widespread anti-government Gezi Park protests in 2013, social media platforms became an alternative source of news as the conventional mainstream media lost its credibility due to its biased reporting. Thereafter, posts were increasingly muzzled by the government, something that intensified in the wake of the failed coup attempt in July 2016. This is a particular problem for Turkey’s Kurds who have taken to social media in the absence of Kurdish media, which has largely been shuttered.
According to BIA Media Monitoring Reports, 182 media outlets have been shut down since the coup attempt. The actual number of news sites, social media posts and online news reports that have been blocked is unknown.
Özcan Kılıç, a lawyer who mostly defends Kurdish journalists and media outlets warned that if there aren’t deferments of verdicts in the cases, there could be more than 7,000 social media users imprisoned in the country. He points out that journalists facing charges related to their social media activities have mostly been sharing links to their own news articles.
“Kurdish journalists mostly share their pieces on their own social media pages because pro-Kurdish TV channels, newspapers are shut down and access to the pro-Kurdish news outlets are banned. The only way to inform people is through their own social media pages, such as Twitter or Facebook,” says Kılıç. “There is a double standard against Kurdish journalists and news outlets. I had a client newspaper which was prosecuted for publishing a photo of Öcalan [one of the founders of the separatist Kurdistan Workers’ Party] while he was smiling for ‘making terrorist propaganda by representing a terrorist organisation’s leader positively’. The judiciary approach is ‘If mass media did it, it is journalism, if Kurds did it, it is propaganda’.”
“When Redhack leaked the emails of Berat Albayrak [then-energy, now the economy minister and a son-in-law of President Recep Tayyip Erdogan] they started to focus on the social media posts,” Kılıç adds. “In the leaked files trial, it was the socialist, leftist and Kurdish journalists who were prosecuted and the only evidence was their news stories that they posted online.”
When the government woke up to social media as a free speech medium, it launched a virtual patrol squad of police officers under the Department of Cybercrime in several cities. According to General Directorate of Security Affairs, the virtual patrols are able to deal with offences falling within the scope of the Public Security Division, listed as online sexual harassment, threat, insult, pandering, inducing suicide, blackmail and obscenity.
Kılıç says that these virtual patrol squads “check all the corners of the internet and create digital reports on individuals’ social media profiles”.
Police reports on social media profiles are collected from open sources, therefore these reports cannot be used as evidence in the prosecutions. “Very few of the courts take these notice and asks for further evidence,” says Kılıç. “But some are. When they ask for authentication of the social media profile which was subjected to trial, prosecutors use even personal information of suspects’ family, children or spouse.”
Kılıç’s note refers to the case of Kurdish journalist Rawin Sterks, in which the prosecutor demanded he be charged with conducting propaganda for a terrorist organisation due to his Facebook post about a documentary he had made about Reşit Marinus, a Kurdish peshmerga, the military forces of the federal region of Iraqi Kurdistan. Sterk denied the charge against him. Istanbul’s 34th Heavy Penal Court didn’t accept the indictment saying that the preamble of “the ‘peshmerga’ title did not refer any PKK militants”. The prosecutor then submitted another indictment, which restated the information in the first, but also added a police report which included some photographs and posts of Sterk’s family. The court then accepted the indictment.
Kılıç said that journalists who are targeted with charges often go public but non-journalists don’t because they fear for the impact on their families. “Regardless if they are educated or not, Kurdish people have an expression problem,” he says. “The Kurdish media is shut down, they cannot gather and celebrate Newroz, they cannot protest. So they do the most convenient thing and post their views on social media.”
When Turkey invaded Afrin, a town in northern Syria, on 10 January 2018, the Ministry of Interior stated that 845 people taken into custody for their online posts about the military operation. Most of them were Kurdish.
“Even posting Selahattin Demirtaş’s [former leader of People’s Democratic Party which is pro-Kurdish and the third biggest party in Parliament. Demirtaş is in prison for more than two years] would be considered ‘terrorist propaganda’,” says Kılıç. “After Afrin operation, even religious, AKP electorate Kurdish people get detained for social media posts.”
He warns: “A bigger crackdown is approaching for the social media posts for the last 5 years. Especially towards the posts that related to the protests which sparked by the Islamic State’s attacks on Kobani in 2014.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1548178869839-7300ed07-67e9-0″ taxonomies=”8607″][/vc_column][/vc_row]
23 Jan 19 | Index in the Press
Joy Hyvarinen at Index on Censorship said the bill remained “fatally flawed”. “Even after the small improvements that passed today, I remain very concerned that large parts of this legislation are going to reshape the law on freedom of expression and freedom of the press in the UK, and I expect there to be court challenges. There is a whole pack of measures relating to the borders and a lot of people are very concerned about the lack of protection for journalists in that package.” Read the full article
23 Jan 19 | Campaigns -- Featured, Statements
[vc_row][vc_column][vc_column_text]Index on Censorship welcomes reports that new criminal charges against Azerbaijani journalist and human rights defender Mehman Huseynov have been dropped.
Mehman Huseynov is short-listed for the Index Freedom of Expression Awards 2019 in the journalism category “for courageous, high-impact and determined journalism that exposes censorship and threats to free expression”.
However, he remains in prison on a previous conviction, widely seen as politically motivated. International organisations continue to call for his release.
Jodie Ginsberg, CEO of Index on Censorship said “Index is pleased that the new charges against Mehman Huseynov have reportedly been dropped, but he should not remain in prison on the earlier, unjustified charges. We urge Azerbaijan to free Mehman Huseynov immediately.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1548234806594-889c5f6f-f3c7-0″ taxonomies=”4742, 5113″][/vc_column][/vc_row]
22 Jan 19 | Azerbaijan, Azerbaijan News, Europe and Central Asia, Media Freedom, media freedom featured, News and features
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Afgan Mukhtarli. Credit: Meydan TV
Azerbaijani journalist Afgan Mukhtarli, who had investigated government corruption, fled the country in fear in 2014 and travelled to Georgia. On 29 May 2017 Mukhtarli vanished while in Tbilisi and reappeared the following day back in Azerbaijan. He was charged with illegally crossing a state border, smuggling and resisting a representative of the government using violence.
“Afgan Mukhtarli’s case is a shocking example of how journalists are treated in Azerbaijan,” Joy Hyvarinen, head of advocacy at Index on Censorship, said. “The European Parliament has urged the European Union to ensure that Azerbaijan frees its political prisoners before negotiations on a new partnership deal between the EU and Azerbaijan are concluded and specifically mentioned Afgan Mukhtarli. It is very important that the EU takes a strong line on this in the talks.”
The European Parliament passed a resolution on 15 June 2017 condemning Mukhtarli’s abduction, urging Georgian authorities to investigate and expressing concern at Azerbaijan targeting critics living in exile. Additionally, the Parliamentary Assembly of the Council of Europe general rapporteur on media freedom and the safety of journalists expressed concern on 20 June 2017.
After more than a year in detention, Mukhtarli was sentenced on 12 January 2018 to six years in prison. This ruling was upheld on appeal on 18 September 2018. Mukhtarli told his lawyer that unidentified men wearing Georgian criminal police uniforms were present when he was pushed into a car, beaten and driven to the Azerbaijani border. The sum of €10,000 was planted on Mukhtarli when he was apprehended. Georgian authorities launched an investigation but have not made progress and refuse to recognise Mukhtarli as a victim of a crime.
Mukhtarli’s sentence and treatment while in detention have been condemned by the US Department of State, Amnesty International, OSCE media freedom representative Desir and the European External Action Service, who call for his release.
At the time of his abduction, Mukhtarli had been investigating business links between Azerbaijani president Ilham Aliyev and former Georgian prime minister Bidzina Ivanishvili. He accused the Georgian authorities of being complicit, stating that “without the permission of the prime minister, they would not have been able to get me across the border”.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1548087608735-4abd0122-06f9-7″ taxonomies=”7145″][/vc_column][/vc_row]
21 Jan 19 | Index in the Press
Turkish journalism platform P24 has been shortlisted by U.S.-based free speech advocate Index on Censorship for its 2019 Freedom of Expression Awards Fellowships. Read the full article.
21 Jan 19 | Index in the Press
Afghanistan’s ArtLords, a group of Afghan activists and artists in Kabul, has been nominated for 2019 Freedom of Expression Awards. Read the full article.
21 Jan 19 | Campaigns -- Featured, Statements, Zimbabwe
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Index on Censorship is alarmed by the increasing number of restrictions being placed on protests globally, which includes attempts by governments to shut down communications networks to prevent people from mobilising. Most recently, the government of Zimbabwe imposed a communications blackout in an attempt to smother a national strike called by unions in response to a fuel price hike.
The ability to protest peacefully is a hallmark of a functioning democracy. International treaties recognise the right to protest through protections related to freedom of assembly, freedom of association, and freedom of speech.
In the past week, it is reported that Zimbabwe’s police and soldiers have beaten civilians, shot 12 people dead and detained at least 600 people. This includes Pastor Evan Mawarire, a former Index on Censorship Freedom of Expression Award nominee, an activist prominent on social media.
“To live freely means being able to challenge those in power without fear of harm or persecution,” said Index on Censorship chief executive Jodie Ginsberg. “We urge the international community to speak out in defence of these freedoms and we call on Zimbabwe to release those it has wrongfully arrested, end the practice of internet shutdown, and permit its people to protest in peace.”[/vc_column_text][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1548072770185-fb1f38fa-2cb0-3″ taxonomies=”173, 7380, 9018″][/vc_column][/vc_row]
21 Jan 19 | Global Journalist, Media Freedom, media freedom featured, News and features, Vietnam
[vc_row][vc_column][vc_column_text]This article is part of Index on Censorship partner Global Journalist’s Project Exile series, which has published interviews with exiled journalists from around the world.[/vc_column_text][vc_single_image image=”104715″ img_size=”full” add_caption=”yes”][vc_column_text]Dang Xuan Dieu has paid a heavy price for resisting the Vietnamese government.
A community activist, blogger and frequent contributor to the Catholic news outlet Vietnam Redemptorist News, a site that often reports on human rights violations, Dieu was arrested in July 2011 and charged with attempting to overthrow the Southeast Asian nation’s Communist government. He was held without trial until January 2013, when he and 13 other writers and human rights activists were convicted after a two-day trial in the central city of Vinh.
Dieu was sentenced to 13 years in prison and five years of house arrest under Article 79 of the country’s penal code, which criminalises activities aimed at overthrowing the government. He was also accused of being a member being of Viet Tan, an exile-run political party banned in the country.
Such trials aren’t unusual in Vietnam. The Communist Party maintains near-total control over Vietnam’s judiciary, media and civil society. Internet in the country is heavily censored, and nearly 100 political prisoners are behind bars, according to Amnesty International.
Expressing dissent in Vietnamese prisons is even harder. The country’s Communist government often seeks to pressure inmates into confessing to alleged crimes in prison, and if they refuse, they can be beaten or tortured.
Yet resist is what Dieu did. He refused to confess, refused to wear a prison uniform and periodically went on hunger strikes to protest his detention and the treatment of prisoners.
“In Vietnam, a lot of people are arrested where they are harassed and tortured, which forces many people to confess their crimes,” says Dieu, 39, in an interview with Global Journalist. “I never accepted the charges and chose to not admit to any guilt. Because of this, I was unable to see my lawyer or my family.”
In his six years in prison, Dieu endured extensive torture and harassment. He was severely beaten for refusing to wear the prison uniform, and was held in solitary confinement for extensive periods in what he described as a “tiny room with no room to breathe.” According to Amnesty International, he was also shackled in a cell with another prisoner who beat him, forced to drink unclean water, denied access to water for bathing and was forced to live in unsanitary conditions without a toilet.
In early January 2017, as U.S. Secretary of State John Kerry travelled to Vietnam, Dieu was granted early release on the condition that he immediately leave the country. Now living in France, Dieu is a student and continues to blog about Vietnam. Through a translator, he spoke with Global Journalist’s Shirley Tay about the abuse he faced in prison and the country’s media climate. Below, an edited version of their interview:
Global Journalist: How did you get into journalism?
Dang Xuan Dieu: I was a student and contributor to the Vietnam Redemptorist News, and I would write about social justice issues. I created my own blog, Tâm và Tầm [Mind and Games] and also worked with a news website Dang Luon.
[Vietnam] restricts independent media and control all media outlets to maintain power. All media is monitored by the Communist Party of Vietnam, so state bodies end up creating their own media or newspapers. There are probably 600 media outlets in Vietnam at the moment, but all are currently controlled by the government. When I was active in 2011, writing blogs and independent news articles was actually quite dangerous.
GJ: What were some of the work that got you into trouble?
Dieu: While I am Catholic, I also work on other forms of activism. The Vietnamese government often tries to control the information that people are able to have. So I created a small, independent organisation to promote education on things like safe sex, pregnancy, and other issues that youth face. Because it was an independent group, we were often targeted. We were asked to go to the police station several times when we were organising in various parishes.
During this time, I started connecting with civil rights activists from overseas who taught me how to manage and organise independent civil society organisations. After that, I travelled overseas to attend some of these classes. On the way back to Vietnam, I was charged for attending a class on leadership training and nonviolent struggle.
GJ: Can you tell me about your time in prison?
Dieu: In prisons, they have their own systems to punish prisoners. There are areas that allow for people to move freely and do normal, day-to-day activities, but there are also areas within the normal prison that are like a prison within a prison within a prison. So I was in what you would call a third-degree prison area, where people are primarily shackled and kept in solitary confinement.
The problems started when I did not confess to any crimes and when I refused to wear the prison uniform because I believed I wasn’t guilty. I was placed in a cell with someone who was charged for murder and who tried to [beat me] to force me to wear the prison uniform and confess to crimes. He may have been doing this on orders from various prison officials.
After that person was transferred, I started advocating for the rights of prisoners, such as writing petitions to officers regarding mistreatment. As a Catholic, I wasn’t allowed to practice my faith or read the Bible. There were several other injustices which led me to begin a hunger strike.
As punishment, they placed me in solitary confinement. The majority of my six years in prison was in solitary confinement or in cells with very dangerous people as cellmates. During my time in prison, they saw me as a resister and so they didn’t allow me to see my family at any time.
What was worse was that they actually told my family that I refused to see them, rather than that I wasn’t allowed to see them. Because of this, I held an extended hunger strike where I ate only one meal a day for nearly a year, and this led to a transfer of prison locations.
GJ: How did you manage to get out of prison?
Dieu: There was another prison inmate who lived close to my cell, where I had been tortured and mistreated. When he was released, he actually told the wider community about what was going on in prison. At that time, the prison wasn’t able to block information going in and out of the prison.
So the community started organising campaigns calling for my release, and there were diplomats from the European Union, France, the U.S., Australia and Sweden who visited me. At that time, the EU diplomat asked if I wanted to be exiled to a country in Europe. I refused because I wanted to advocate for the release of other people, not my own release.
After the diplomat’s visit, they took me to a different cell and then never allowed me to leave that area for about six months. The situation started becoming dangerous to my life and luckily, another inmate who was not a political prisoner, but just a regular prisoner, was released and contacted my family to inform them of my prison conditions.
So the EU and a French diplomat visited me again, this was during the time of French President [François] Hollande’s visit to Vietnam in September 2016. My family was able to pass me a letter asking me to go into exile. Upon receiving that letter, I agreed. After that, it took another three months for them to arrange it.
GJ: At that point, were you ready to go in to exile?
It was only the letter from my mother which pushed me to choose to be exiled. It was because my mother is fairly old now, and she wanted to see me released before she died. I was determined, I was willing to die in prison rather than be exiled. The Vietnamese government tries to push activists outside of Vietnam, because they see that it’s not a win for activism. And obviously, for humanitarian reasons, a lot of the community advocates for the release of these prisoners.
GJ: Do you have plans to return?
Dieu: I want to return to Vietnam, but it depends on there being changes through international pressure. If I were to return now, I would definitely be arrested. I will just have to wait.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/2″][vc_video link=”https://youtu.be/6BIZ7b0m-08″][/vc_column][vc_column width=”1/2″][vc_column_text]Index on Censorship partner Global Journalist is a website that features global press freedom and international news stories as well as a weekly radio program that airs on KBIA, mid-Missouri’s NPR affiliate, and partner stations in six other states. The website and radio show are produced jointly by professional staff and student journalists at the University of Missouri’s School of Journalism, the oldest school of journalism in the United States. [/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Don’t lose your voice. Stay informed.” use_theme_fonts=”yes”][vc_separator color=”black”][vc_row_inner][vc_column_inner width=”1/2″][vc_column_text]Index on Censorship is a nonprofit that campaigns for and defends free expression worldwide. We publish work by censored writers and artists, promote debate, and monitor threats to free speech. We believe that everyone should be free to express themselves without fear of harm or persecution – no matter what their views.
Join our mailing list (or follow us on Twitter or Facebook). We’ll send you our weekly newsletter, our monthly events update and periodic updates about our activities defending free speech. We won’t share, sell or transfer your personal information to anyone outside Index.[/vc_column_text][/vc_column_inner][vc_column_inner width=”1/2″][gravityform id=”20″ title=”false” description=”false” ajax=”false”][/vc_column_inner][/vc_row_inner][/vc_column][/vc_row][vc_row full_width=”stretch_row_content”][vc_column][three_column_post title=”Global Journalist / Project Exile” full_width_heading=”true” category_id=”22142″][/vc_column][/vc_row]
18 Jan 19 | Awards Update, Fellowship, Fellowship 2018, News and features
[vc_row][vc_column][vc_column_text]The Index Awards Fellowship has become an important element of Index on Censorship’s work – allowing us to help those on the frontlines of defending free speech around the world. Each fellow receives a structured programme of assistance including capacity building, mentoring and networking. Over the course of a year, we also help them accomplish a key goal that will significantly enhance the impact or sustainability of their work.
The 2018 Fellows are continuing to thrive:[/vc_column_text][vc_single_image image=”103306″ img_size=”full” add_caption=”yes”][vc_column_text]Arts fellow the Museum of Dissidence, led by artist Luis Manuel Otero Alcántara and art curator Yanelys Nuñez Leyva, have put themselves on the line in the fight against Decree 349, a vague law intended to severely limit artistic freedom in Cuba. In November, the two were arrested for peacefully protesting the law. Index campaigned for their release at a solidarity protest at Tate Britain.
Having missed our Freedom of Expression Awards ceremony in April 2018, we were thrilled to present Nuñez Leyva and Otero Alcántara with their award in October at Metal Culture Southend, an arts centre where they were taking part in a two-week residency.[/vc_column_text][vc_single_image image=”99812″ img_size=”full”][vc_column_text]Campaigning fellows the Egyptian Commission for Rights and Freedoms continue to highlight human rights abuses and provide support for those facing repression. The group has expanded its reach by opening two new offices around the country and has benefited from technology training provided by Index. Amal Fathy, wife of ECRF executive director Mohamed Lotfy, was released from prison in late December after eight months in detention for her online criticism of sexual harassment in Egypt, but a two-year prison sentence was upheld against the activist, raising fears she could again end up behind bars. Index continues to campaign for Amal at international level.[/vc_column_text][vc_single_image image=”99888″ img_size=”full” add_caption=”yes”][vc_column_text]Digital Activism fellow Habari RDC, a collective of more than 100 young Congolese bloggers and web activists, have been busily covering December’s tense election in the Democratic Republic of Congo and its fallout. Guy Muyembe, president of Habari RDC, said before the elections: “The only thing that is certain about the election is the uncertainty that comes with it.” The continuing tensions threaten to destabilise the country, insecurity and violence. Index has arranged training for Habari RDC with Protection International which will take place early this year.[/vc_column_text][vc_single_image image=”99885″ img_size=”full” add_caption=”yes”][vc_column_text]Journalism fellow Wendy Funes continues to cover corruption and human rights violations in Honduras, a country where violence has become “normalised”. With the help of Index, Wendy is in the process of securing an office for her newspaper which will create a safe space for her team to do their work. She also plans to open the space to other journalists and offer training to students. Wendy has been selected as a judge for the UNESCO/Guillermo Cano World Press Freedom Prize and has been able to attain funding which will cover some of her investigations for 2019.[/vc_column_text][vc_single_image image=”99904″ img_size=”full” add_caption=”yes”][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1547745843103-843df51b-4519-5″ taxonomies=”8935″][/vc_column][/vc_row]
17 Jan 19 | Awards, Campaigns, Campaigns -- Featured, Statements
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Index on Censorship calls for the dropping of all charges and immediate release of activist Evan Mawarire, who was arrested in Zimbabwe on Wednesday and accused of treason on Thursday.
Police arrested Mawarire at his home on Wednesday morning as protests against soaring fuel prices entered their third day. On Thursday, the Zimbabwe Lawyers for Human Rights reported that Mawarire had been charged with subverting a constitutional government in connection with a video he issued earlier in the week urging people to stay away from work and insisting that protests remain peaceful. Mawarire was initially charged with inciting violence.
Several people have been killed and hundreds arrested in the protests. Internet access has been suspended by mobile networks on government orders.
Mawarire ignited one of the most important protest movements in Zimbabwe’s recent history in 2016 when he posted a video of himself draped in the Zimbabwean flag and voiced his frustration at the state of the nation. He has since become known worldwide as a vocal and prominent critic of the government.
Mawarire’s #ThisFlag videos and hashtag protesting against the then president Robert Mugabe and his government went viral in 2016, sparking protests and a boycott attended by over an estimated eight million people. Mr Mugabe resigned in 2017 following a military takeover and mass demonstrations. President Emmerson Mnangagwa came into power on the promise of change but he has been accused of failing to live up to his promises, with Zimbabweans suffering rocketing inflation and a decline in living standards.
Mawarire was previously arrested in the aftermath of the original #ThisFlag videos, when he was charged with inciting public disorder. The prosecution then added the more severe charge of subversion on the day of his trial without notifying his legal team. During his trial, a magistrate judge ruled that it was unconstitutional for the prosecution to bring new charges in court and acquitted Mawarire of all charges.
“I had the immense good fortune to meet Evan at a conference in Australia last year,” said Index on Censorship chief executive Jodie Ginsberg. “He spoke movingly and with great humility about his passion for Zimbabwe and seeing reform of the country in his children’s lifetimes. Zimbabwe must show it is serious about change, and that means respecting the rights of those who criticise the government and who, like Evan, advocate change through peaceful means.”
Evan Mawarire was shortlisted for the 2017 Index on Censorship Freedom of Expression Awards. Alp Toker, a 2017 Freedom of Expression Award winner in the digital activism category and whose organisation monitors internet shutdowns worldwide expressed concern at attempts to limit information being shared in Zimbabwe: “NetBlocks measurements present clear evidence of a targeted and intentional effort to disrupt lines of communication in Zimbabwe. Attempts to curtail the free flow of information impede and do not assist justice. We call on the state to respect the constitutional right to free opinion and expression of its citizens.”[/vc_column_text][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1547741087906-88e96647-d3c5-1″ taxonomies=”9018″][/vc_column][/vc_row]
15 Jan 19 | Index in the Press
Two Nigerian non-governmental organizations, Media Rights Agenda (MRA) and the Institute for Media and Society (IMS) were on Tuesday named among 15 “Global champions of free expression” shortlisted for the 2019 Index on Censorship Freedom of Expression Awards. Read the full article
15 Jan 19 | Campaigns -- Featured, Digital Freedom, Digital Freedom Statements, Statements
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Index on Censorship shares the widespread concerns about the proposed EU regulation on preventing the dissemination of terrorist content online. The regulation would endanger freedom of expression and would create huge practical challenges for companies and member states.
Jodie Ginsberg, CEO of Index, said “We urge members of the European Parliament and representatives of EU member states to consider if the regulation is needed at all. It risks creating far more problems than it solves. At a minimum the regulation should be completely revised.”
[/vc_column_text][vc_column_text]Following the recent agreement by the European Council on a draft position for the proposed regulation on “preventing the dissemination of terrorist content online,” which adopted the initial draft presented by the European Commission with some changes, the Global Network Initiative (GNI) is concerned about the potential unintended effects of the proposal and would therefore like to put forward a number of issues we urge the European Parliament to address as it considers it further.
GNI members recognize and appreciate the European Union (EU) and member states’ legitimate roles in providing security, and share the aim of tackling the dissemination of terrorist content online. However, we believe that, as drafted, this proposal could unintentionally undermine that shared objective by putting too much emphasis on technical measures to remove content, while simultaneously making it more difficult to challenge terrorist rhetoric with counter-narratives. In addition, the regulation as drafted may place significant pressure on a range of information and communications technology (ICT) companies to monitor users’ activities and remove content in ways that pose risks for users’ freedom of expression and privacy. We respectfully ask that EU officials, Parliamentarians, and member states take the time necessary to understand these and other significant risks that have been identified, by consulting openly and in good faith with affected companies, civil society, and other experts.
Background on the Proposal
This regulation follows previous EU efforts to reduce the proliferation of extremist content online, including the EU Internet Forum launched in December 2015 and the March 2017 directive on combating terrorism. However, the proposed regulation would move beyond the voluntary cooperation underpinning previous initiatives and require member states to establish legal penalties against ICT companies for failure to comply with the obligations outlined in this proposal. GNI joins others who have flagged that more work is needed to analyze the effectiveness of these past approaches before the current proposal can be justified as necessary and appropriate.
This effort also come against a backdrop of separate initiatives by the European Commission to address other areas of “controversial content” online, including the May 2016 “Code of Conduct for Addressing Hate Speech Online”, the March 2018 “Recommendation on measures to effectively tackle illegal content online,” and the September 2018 “Code of Practice to address the spread of online disinformation and fake news.”
GNI’s Work on Extremist Content to Date
GNI is the world’s preeminent multistakeholder collaboration in support of freedom of expression and privacy online. GNI’s members include leading academics, civil society organizations, ICT companies, and investors from across the world. All GNI members subscribe to and support the GNI Principles on Freedom of Expression and Privacy (“the Principles”), which are drawn from widely-adopted international human rights instruments. The Principles, together with our corresponding Implementation Guidelines, create a set of expectations and recommendations for how companies should respond to government requests that could affect the freedom of expression and privacy rights of their users. The efforts of our member companies to implement these standards are assessed by our multistakeholder board every other year.
In July 2015, GNI launched a policy dialogue — which began internally, and later expanded to include external stakeholders, including the European Commission and some member states — to explore key questions and considerations about government efforts to restrict online content with the aim of protecting public safety, and to discuss the human rights implications of such government actions. In December 2016, GNI released a policy brief, “Extremist Content and the ICT Sector,” that was informed by that dialogue and included recommendations for governments and companies to protect and respect freedom of expression and privacy rights when responding to alleged extremist or terrorist content online. We refer to these recommendations as a basis to highlight the following elements in the proposed regulation which remain a potential concern.
Definitional Challenges
In our policy brief, GNI noted that laws that prohibit incitement to terrorism “should only target unlawful speech that is intended to incite the commission of a terrorist offense and that causes a danger that a terrorist offense or violent act may be committed.” While the Council’s amendments clearly try to add greater definitional clarification to the requirement for “intent,” the regulation continues to reference the definition of “terrorist content” found in Directive (EU) 2017/541, which has been deemed problematic by human rights groups and independent experts. In addition, because this definition is based in a Directive, it creates the possibility that it will be interpreted with significant variance across member states. These definitional issues are likely to lead to legal uncertainty, as well as potentially overly-aggressive interpretations by companies that could result in the removal of content that should be protected under the Charter of Fundamental Rights and Member State constitutions. Notably, and unlike the definition of terrorist offences in the Directive, the definition of terrorist content in the regulation does not clarify that content must amount to a criminal offence or be punishable under national law.
GNI notes in our extremist content brief that laws and policies should clearly distinguish between “messages that aim to incite terrorist acts and those that discuss, debate, or report them.” Because the regulation fails to make such a clear distinction, it will pose particular risks to the legitimate expression of journalists and researchers working on documenting terrorist abuses. It may also, unintentionally, impact those working on counter-terrorism efforts, including those trying to use arguments based in humor, satire, or religious doctrines to engage in counter-messaging or counter-narrative efforts.
Removal Orders
The proposal allows designated “competent authorities” to issue removal orders to companies requiring they remove terrorist content, deemed illegal under the proposed regulation, within one hour from receipt of the order. As noted in our policy brief, GNI members are expected to “interpret government restrictions and demands, as well as governmental authority’s jurisdiction, so as to minimize the negative effects on freedom of expression.” The rapid timeline prescribed potentially creates significant challenges for appropriate review of removal orders.
In addition, the potentially significant legal penalties for noncompliance will put increased pressure on companies to comply with these orders. While we appreciate the provisions, particularly in the Council’s amendments, allowing for companies to appeal such orders to the judicial authority of the member state that issued the request, it is not clear that this appeal delays the timeline for removal. If content is removed, the amount of time it can take for appropriate redress to take place and for content to be reinstated poses substantial freedom of expression risks.
Finally, GNI members have also worked extensively to understand and address the jurisdictional challenges that emerge when governments make orders that end up being enforced through or having impacts on other jurisdictions. While the provision for a “consultation procedure” added by the Council is helpful, the proposal still creates significant potential for conflicts of laws to emerge, which would add to the aforementioned lack of legal clarity.
Referrals
The proposed regulation would allow member states to establish “competent authorities” to issue referrals of content “that may be considered terrorist” for review by companies under their own terms and conditions, and if appropriate, removal. As others have noted, it is not clear competent authorities or member states are expected to have already determined that the content is illegal under national law prior to submission of a referral. The law also requires companies to establish “operational and technical measures facilitating expeditious assessment of content sent by competent authorities.”
In “Extremist Content and the ICT Sector,” we raised concerns about the potential for this type of referral to “set precedents for extra-judicial government censorship without adequate access to remedy, accountability, or transparency for users and the public.” GNI has called on governments to use formally established legal procedures when they demand the restriction of content by ICT companies, to adopt additional safeguards, and to be clear about whether they are issuing referrals or issuing legal orders, and it would appear that these referrals do not meet that standard. It is also unclear if there would or could be any independent, judicial oversight of this mechanism, and yet the proposal notes that lack of expeditious response could lead to the implementation of proactive measures or even legal penalties.
Duties of Care/Proactive Measures
GNI noted in “Extremist Content and the ICT Sector” that governments should not pressure companies to change their terms of service. Yet, Article Three of the proposal establishes “duties of care” whereby companies are expected to undertake reasonable and proportionate actions in accordance with the regulation for the removal of extremist content on their platforms, and furthermore, are expected to “include, and apply, in their terms and conditions provisions to prevent the dissemination of terrorist content.”
Beyond these “duties of care,” the proposed regulation also outlines an expectation for companies to undertake “effective and proportionate” “proactive measures to protect their services against the dissemination of content,” including through automated means. While the Council’s position notes that this requirement is “depending on the risk and level of exposure to terrorist content,” this fails to clarify if, when, and how companies should take such measures. Should a company receive a removal order under Article Four, they are required to implement these proactive measures, both to prevent re-upload of the content that was identified in a previous removal order, and on terrorist content more broadly, reporting back to the competent authority within three months about the proactive measures in place for “detecting, identifying, and expeditiously removing or disabling access to terrorist content.”
This aspect of the proposal poses an increased risk on the right to privacy, in so far as it calls on companies to proactively monitor and filter their users’ communications. Furthermore, as the proposal acknowledges, it “could derogate” from the provisions against a “general monitoring obligation” in Article 15 of the e-Commerce Directive, “as regards certain specific, targeted measures, the adoption of which is necessary for overriding public security reasons” (see recital 19). Finally, it is important to recognize the potential freedom of expression risks that come from a reliance on automated filtering measures. Limitations on the effectiveness of existing technology to search, analyze, and filter content online are often underappreciated and can lead to over-removal of legitimate content.
Transparency & Redress
GNI would like to emphasize the critical need to ensure adequate redress and transparency measures are in place throughout the various elements of this proposal. The proposal clarifies requirements for companies to make available the reason for content removals, as well as avenues for content providers to contest the decision. However, there are no similar requirements for the competent authorities, and as previously noted, any appeals to member states’ judicial authorities under Article Four do not necessarily delay the timeline for decision. In sum, the proposal’s repeated reference to users’ right to remedy and the provisions on redress do not seem to be matched by specific guidance and effective implementation.
In our policy brief, GNI members flagged that “governments should regularly and publicly report, at a minimum, the aggregate numbers of requests and/or legal orders made to companies to restrict content and the number of users impacted by these requests,” and with regards to the requests for removal made under companies’ terms of service, “Governments should regularly and publicly report, at a minimum, the aggregate number of requests made to companies to restrict content and the number of users impacted by these requests.” While we appreciate that the transparency obligations for companies under Article Eight include a requirement to report on the “number of pieces of terrorist content removed or to which access has been disabled, following removal orders, referrals, or proactive measures, respectively,” there is little in the way of similar requirements for governments anywhere in the proposal. Under the current proposal, the obligatory government reporting only appears to apply for the purposes of assessing the proposal’s implementation and effectiveness, not for providing transparency for users and the general public.
Practical Issues
GNI would also like to flag some potential ambiguities in implementation that pose risks for users’ rights. First, there is very limited guidance for member states’ designation of competent authorities who carry out the provisions under Articles Four, Five, and Six. While Article 17 states that all member states must designate a competent authority or competent authorities and notify the Commission, the only requirements seem to be that competent authorities are “administrative, law enforcement or judicial authorities” (see recital 13). Furthermore, states are able to designate multiple competent authorities, which could cause confusion for companies receiving requests. Several companies have stated that the member states should be required to establish a single authority, which would seem a reasonable request.
Second, there are stringent requirements for companies to establish legal representatives to “ensure compliance with enforcement of the obligations under this regulation” (See recital 35), as well as points of contact to “facilitate the swift handling of removal orders and referrals,” including the one-hour timeline. In addition, the definition of “hosting service providers” in the regulation has been criticized for its lack of clarity as to what companies are covered under the proposal. In combination, these two issues pose potential challenges for smaller and medium-sized enterprises, who may not have the existing infrastructure to deal with the rapid, 24/7, requests and properly assess the potential human rights impacts, or may be discouraged from potential business opportunities at the cost of compliance with this regulation.
Conclusion
As noted above, the proposed regulation raises significant issues that must be addressed before it is enacted into law. At a minimum, amendments should: (i) ensure key provisions, such as the definitions of terrorist content, hosting service providers, and competent authorities are refined and clarified; (ii) clarify that legal challenges of content removal orders by companies will toll the 24-hour clock for related removals; (iii) require that content referrals under the regulation are reviewed against relevant laws and appropriate oversight mechanisms are in place for referrals; (iv) remove requirements that companies modify their terms and conditions; (v) eliminate, or significantly limit, situations where companies will be ordered or expected to implement “proactive measures” against their will; and (vi) strengthen provisions on remedy and transparency, including vis-a-vis government decisions.
GNI recognizes the importance of taking measures to prevent the dissemination of terrorist content online and stands ready to continue engaging with relevant actors, including the Council, the Commission, and Parliament to ensure that our collective efforts to address this challenge remain effective, efficient, and consistent with applicable human rights principles.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1547568745346-e52becbf-149c-9″ taxonomies=”4799, 2181″][/vc_column][/vc_row]
