30 Apr 2014 | About Index, Campaigns, Press Releases
VIENNA, April 30, 2014 – The European Commission’s support for projects addressing violations of media freedom and pluralism, and providing practical support to journalists, gives European Union countries reason to celebrate this year on May 3, World Press Freedom Day, media freedom watchdogs said today.
However, new research into defamation law and practice – one of four, one-year projects launched in February under a Commission-funded grant programme focusing on the 28 EU member and five candidate countries – has shed light on one big elephant in the room, the Vienna-based International Press Institute (IPI) said. Preliminary results of a study by IPI and the Center for Media and Communications Studies (CMCS) at Budapest’s Central European University reveal that criminal laws in the EU addressing libel, slander, and insult remain rife and, in many cases, contravene international and European standards.
Furthermore, as another project, “Safety Net for European Journalists”, registered, attacks on journalists continue to represent a major challenge to press freedom in Europe. Research and field work by the Osservatorio Balcani e Caucaso, IPI affiliate the South East Europe Media Organisation (SEEMO), Ossigeno per l’Informazione and Dr. Eugenia Siapera of Dublin City University have shown that journalists across Southeast Europe, Turkey and Italy often face common threats and pressure, highlighting a crucial need for transnational support.
“Media freedom and pluralism can unfortunately not be taken for granted in Europe,” Neelie Kroes, vice-president of the European Commission responsible for the Digital Agenda, said. “We all, governments, NGOs, the media, and the EU institutions have a role to play in standing firmly to defend these principles, in Europe and beyond, now and tomorrow, on and off-line. I am interested to see what the outcome of the independent projects will be.”
The European Commission grant programme, the “European Centre for Press and Media Freedom”, is funding two projects in addition to IPI’s project researching the effects of defamation laws on journalism in Europe and raising awareness of the same, and the “Safety Net” project establishing a transnational support network for journalists in Southeast Europe, Turkey and Italy. Index on Censorship has created a project to map media freedom violations, and the Florence-based Centre for Media Pluralism and Media Freedom (CMPF), also working in conjunction with CMCS, is creating tools and networks to strengthen journalism in Europe.
The grantees’ work, combating violations of the fundamental right to press and media freedom, is intended to play a critical role in protecting both the fundamental human right of free expression, as guaranteed by Article 11 of the EU’s Charter of Fundamental Rights, as well as the media’s instrumental role in safeguarding democratic order.
Some of the grantees will also collaborate to establish an intra-European network of legal assistance for media outlets facing legal proceedings.
IPI and CMCS plan to launch a comprehensive report in early June on the status of criminal and civil defamation law in EU member and candidate countries, intended to help identify states where engagement is required most urgently. The report will evaluate each country across a number of categories, including the types of defences and punishments available and the existence of provisions shielding public officials, heads of state, or national symbols from criticism. It will also include a first-of-its-kind “perception index” to gauge the subjective effect that criminal and civil defamation proceedings have on press freedom.
Preliminary research shows that, in nearly all EU member states, libel and insult remain criminal offences punishable with imprisonment – up to five years in some cases – and that journalists continue to face prosecutions in numerous countries, particularly Croatia, Greece, Hungary, Italy, Malta and Portugal. While some countries have seen movement toward decriminalisation, only a small minority of states have fully abolished criminal libel and insult provisions, among them Ireland, Romania and Britain.
A key finding so far is that while national courts in many cases apply European Court of Human Rights precedents on protection of freedom of expression, few EU member states have adopted legislation that meets these standards. This is particularly true with regard to defences available to journalists in libel proceedings. In IPI’s view, the lack of modern legislation clearly establishing defences of truth, public interest, fair comment and honest opinion contributes to an atmosphere of uncertainty and potential self-censorship on matters of public interest.
Additionally, the research so far has shown that legal protections shielding public officials from scrutiny are prevalent in many countries, and that such provisions often are found in tandem with increased punishments for journalists and media outlets that publish content that could be deemed defamatory. The combination of these two instruments – present in the laws of many EU member states – significantly weakens legal safeguards that enable journalists and media outlets to perform their necessary watchdog roles. Such barriers pose undue restrictions on freedom of expression rights and the public’s right to know, as established by international and EU conventions and treaties.
Despite clear challenges, however, the research has also found several important positive movements, including the enactment of modern civil defamation legislation in Ireland in 2009 and in England and Wales in 2013, as well as the full repeal of criminal libel in those jurisdictions. The removal, for the most part, of prison sentences as a punishment for libel in Finland, new discussions among Italian lawmakers to end imprisonment for criminal defamation and the repeal of a French law punishing insults to the president all indicate a growing, if slow, willingness to tackle archaic legislation.
If you would like more information or to schedule an interview with IPI Senior Press Freedom Adviser Steven M. Ellis, please call +43 (1) 512 9011 or email [email protected].
1 Feb 2014 | News, Politics and Society, Zambia
(Photo illustration: Shutterstock)
By Paul Carlucci for Think Africa Press, an online magazine that offers commentary and in-depth analysis from leading African and international thinkers.
Lusaka, Zambia: A little over two years ago, when Michael Sata was campaigning for Zambia’s top office, he promised that, if elected, he would finally bring to an end a decade of abandoned legal reform and deliver the country a definitive new constitution. Not only that, but he would do it within 90 days of taking power.
Sata’s election campaign was successful, and soon after taking office in September 2011, the new president − along with his Patriotic Front (PF) government − tasked a committee of lawyers and academics with drafting the document.
Things soon slowed down however, and it is only now − several shrugged-off deadlines later − that Zambia seems to be nearing the completion of its constitutional process. Though that’s not to say things are necessarily moving smoothly. In December 2013, the government blocked the constitutional committee from releasing its final draft to the public, insisting it be sent to the government alone, while allegations have emerged that Sata has changed his mind about Zambia’s need for a new constitution, believing instead that the existing one can simply be amended.
The government has rejected these claims, asserting that Sata’s commitment to a new constitution remains “unshakeable”, and his two-year-old promise continues to loom large in the psyche of an increasingly outraged brigade of critics. After the 2014 budget revealed a skew of alarming numbers and the global rating agency Fitch downgraded the country’s credit rating, the PF’s economic success story lost its celebrated momentum, leaving it with little more than a narrative of heavy-handed autocracy.
Many of the government’s opponents have closed in on the constitution as a panacea for all that ails the country, a movement that culminated in a major demonstration at the Cathedral of the Holy Cross in Lusaka and which took a sensational twist on 15 January when the outspoken Zambian Watchdog published what it claims is a leak of the final draft.
A torrent of official statements followed as the drafting committee denied originating the leak, the police vowed to clamp down on what they termed a ‘cybercrime’, and the government vowed to track down and punish the perpetrators of the leak. The cabinet, which is meant to be deliberating the final draft, also claimed it hasn’t yet received its copies of the document.
Talking the talk
While the authenticity of the leaked constitution is uncertain, it doesn’t stray far from the publicly available first draft, or even from previous drafts commissioned under past administrations. Zambia’s electoral system is addressed, requiring candidates to garner over 50% of the vote to hold presidential office, while parliament would be composed of members elected through a combination of first-past-the-post and proportional representation.
The draft Bill of Rights − which includes classical first generation rights as well as social, economic and cultural rights − is also more clearly articulated than it is in the existing constitution, and it seems to be these protections, more than technical changes to governance structure, that the opposition is longing for. They complain that their protests have been menaced by police and ruling party thugs, that critical media outlets have been persecuted by the government, and that the general population, especially outside the capital Lusaka, slogs through a life of poverty, illiteracy and environmental degradation.
Indeed, tackling these problems is crucial, but here’s the rub: there’s more than enough substance in the existing constitution to transform human rights in the country. That’s not the issue. The real problem is that successive administrations, including those headed by members of the now opposition Movement for Multiparty Democracy (MMD), simply cast off their legal responsibilities when it suits them. What needs to be tackled is Zambia’s tradition of impunity, which dates all the way back to the era of its independence president, Kenneth Kaunda.
When Zambia was granted independence in 1964, it started its new life with a multiparty framework, led by Kaunda’s United National Independence Party (UNIP), which had won 55 of 75 seats in the pre-independence elections. But this wasn’t to last. In 1972, keen outmanoeuvre political opponents both inside and outside the ruling party, Kaunda banned all political parties apart from UNIP. In 1973, he formalised one-party rule in a new constitution that also that consolidated state power in the president’s office.
It was only 18 years later when Zambia was choked by debt and was facing mounting pressure from the international community that Kaunda commissioned a hasty legal review. That move led to the establishment of the 1991 constitution and multiparty elections that brought MMD leader Fredrick Chiluba to power.
Not a lot has changed since then, despite the reform commissions that have been mandated, the reports that have been produced, and the many amendments proposed. One amendment that has been passed was a provision barring candidates with foreign parentage from running for the presidency. Chiluba, assisted by Sata, who was then a member of the MMD, managed to force through this provision in 1996, effectively blocking Kaunda, whose father was born in neighbouring Malawi, from returning. The amendment still exists today, but the kinds of reforms that would hold leaders more closely to account have remained elusive.
A tradition of impunity
However, in many ways, the existing constitution does a lot of things right. It contains all the baseline requisites such as human dignity, equality before the law, protection from inhuman treatment, freedom from slavery, and freedoms of religion and expression. It also explicitly protects young people from various forms of exploitation. And under the Directive Principles of State Policy section, its clauses address employment, shelter, disability, and education. It does use some derogatory language, but so too do the current drafts of the new constitution.
The problem is that despite these legal mandates, correctional facilities are overcrowded and access to justice fails many prisoners in remand; there’s a long track record of beating, arresting, and criminally charging journalists, civil society leaders, and political figures who criticise government; poverty is endemic in rural areas, where education and healthcare facilities are also inadequate and the means of pursuing a gainful livelihood are largely absent.
When it comes to social and economic rights, many developing countries explain their failures in terms of cost. How can a poor nation like Zambia be expected to improve the lot of its direly undeveloped rural areas? How can it extend its meagre health and educational resources that far? How can it afford what human rights theorists call ‘positive rights’, those measures that require government action to protect and maintain?
Part of the answer is to dam the ever-bubbling backwaters of corruption, which divert enormous sums from the country’s development agenda. While corruption charges and trials do occur – usually motivated by political reasons – leaders from Chiluba to Sata have done little to substantively affect the diversion of public money from development to private bank accounts, while Chiluba in particular oversaw the country’s most notorious chapter of embezzlement.
Steak on the table
In the short term, real change won’t emerge from the government’s legal apparatus. It will have to come from outside. Protesting Zambians have chalked up victories before, as when public demonstrations played a role in dissuading Chiluba from seeking an unconstitutional third term. And if NGOs, beleaguered though they are by looming registration reforms, were to focus their efforts on mobilising not just urban Zambians, but also those people living in undeveloped areas, more tangible results could be achieved.
But it’s not just a case of focusing their efforts. It’s a case of refocusing them. The fight for a new and improved constitution is certainly a worthy one, but civil society organisations have made a holy grail of constitutional reform, as if delivery will automatically slacken the state’s grip on an array of levers it freely abuses, from stacking the judiciary with supporters to deploying waves of violent thugs in by-election campaigns.
The current opposition, meanwhile, is only too pleased to ally itself with activists, but given the MMD’s own history of unjust governance, the teaming up is clearly for self-serving reasons. Rather than giving politicians such an elevated podium from which to reinvent themselves, civil society would do better to zero in on specific rights violations and protest those on the same scale as they do constitutional reform.
The other piece of this puzzle is the international community. That’s a difficult prescription for a continent whose leaders routinely play their populations against what they frame as foreign interference, but sustained pressure from multilateral organisations able to reference even the current set of constitutional guarantees would help consolidate demands made in the streets.
None of this is to say that robust laws can’t lay the groundwork for a future of mature, responsive governance. A strong legal framework, no matter its current irrelevance, will make for useful terms of reference in a more developed future, and human rights theorists habitually point to ambitious laws as key components to equitable progress. Indeed, what is a pie in the sky today could very well become steak on the plate tomorrow. The point is that it will take more than a good-looking tablecloth to make that happen.
This article was originally published on 21 January 2014 at Think Africa Press and is reposted here by permission.
Paul Carlucci is a Canadian writer and journalist based in Lusaka, Zambia. He has reported from Ghana and Ivory Coast for Think Africa Press, IPS Africa, Al Jazeera English, the Toronto Star, and the Toronto Standard. His collection of short stories ‘The Secret Life of Fission’ is available through Oberon Press. Follow him on twitter @PaulCarlucci.
14 Jan 2014 | About Index, Campaigns, Press Releases, Statements
Dean Spielmann
President
European Court of Human Rights
Council of Europe
F-67075 Strasbourg cedex
France
13 January 2014
Re: Grand Chamber referral in Delfi v. Estonia (Application no. 64569/09)
Index’s coverage: European ruling spells trouble for online comment
Dear President Spielmann and members of the panel:
We, the undersigned 69 media organisations, internet companies, human rights groups and academic institutions write to support the referral request that we understand has been submitted in the case of Delfi v. Estonia (Application No. 64569/09). Signatories to this letter include some of the largest global news organisations and internet companies including Google, Forbes, News Corp, Thomson Reuters, the New York Times, Bloomberg News, Guardian News and Media, the World Association of Newspapers and News Publishers and Conde Nast; prominent European media companies and associations including the European Newspaper Publishers’ Association, Sanoma Media Netherlands B.V. and the European Publishers Council; national media outlets and journalists associations from across the continent; and advocacy groups including Index on Censorship, Greenpeace, the Center for Democracy and Technology and ARTICLE 19.
We understand that the applicant in the above-referenced case has requested that the chamber judgment of 10 October 2013 be referred to the Grand Chamber of the Court for reconsideration. We are writing to endorse Delfi’s request for a referral due to our shared concern that the chamber judgment, if it stands, would have serious adverse repercussions for freedom of expression and democratic openness in the digital era. In terms of Article 43 (2) of the Convention, we believe that liability for user-generated content on the Internet constitutes both a serious question affecting the interpretation or application of Article 10 of the Convention in the online environment and a serious issue of general importance.
The case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.
We find the chamber’s arguments and conclusions deeply problematic for the following reasons.
First, the chamber judgment failed to clarify and address the nature of the duty imposed on websites carrying user-generated content: what are they to do to avoid civil and potentially criminal liability in such cases? The inevitable implication of the chamber ruling is that it is consistent with Article 10 to impose some form of strict liability on online publications for all third-party content they may carry. This would translate, in effect, into a duty to prevent the posting, for any period of time, of any user-generated content that may be defamatory.
Such a duty would place a very significant burden on most online news and comment operations – from major commercial outlets to small local newspapers, NGO websites and individual bloggers – and would be bound to produce significant censoring, or even complete elimination, of user comments to steer clear of legal trouble. The Delfi chamber appears not to have properly considered the implications for user comments, which on balance tend to enrich and democratize online debates, as part of the ‘public sphere’.
Such an approach is at odds with this Court’s recent jurisprudence, which has recognized that “[i]n light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally.”[1] Likewise, in Ahmet Yildirim v. Turkey, the Second Section of the Court emphasised that “the Internet has now become one of the principal means of exercising the right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest”.[2]
Secondly, the chamber ruling is inconsistent with Council of Europe standards as well as the letter and spirit of European Union law. In a widely cited 2003 Declaration, the Committee of Ministers of the Council of Europe urged member states to adopt the following policy:
“In cases where … service providers … store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware … of their illegal nature.
When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information.”[3]
The same position was essentially adopted by the European Union through the Electronic Commerce Directive of 2000. Under the Directive, member states cannot impose on intermediaries a general duty to monitor the legality of third-party communications; they can only be held liable if they fail to act “expeditiously” upon obtaining “actual knowledge” of any illegality. This approach is considered a crucial guarantee for freedom of expression since it tends to promote self-regulation, minimizes the need for private censorship, and prevents overbroad monitoring and filtering of user content that tends to have a chilling effect on online public debate.
Thirdly, it follows from the above that the Delfi chamber did not thoroughly assess whether the decisions of the Estonian authorities were “prescribed by law” within the meaning of Article 10 § 2. Under the E-Commerce Directive and relevant judgments of the Court of Justice of the European Union (CJEU), it was not unreasonable for Delfi to believe that it would be protected by the “safe harbour” provisions of EU law in circumstances such as those of the current case.[4] The chamber ruling sets the Court on a potential course of collision with the case law of the CJEU and may also give rise to a conflict under Article 53 of the Convention.
Finally, the chamber ruling is also at odds with emerging practice in the member states, which are seeking innovative solutions to the unique complexities of the Internet. In the UK, for example, the new defamation reforms for England and Wales contain a number of regulations applicable specifically to defamation through the Internet, including with respect to anonymous third-party comments. Simply applying traditional rules of editorial responsibility is not the answer to the new challenges of the digital era. For similar reasons, related among others to the application of binding EU law, a recent Northern Ireland High Court judgment expressly chose not to follow the Delfi chamber ruling.[5]
For all these reasons, we strongly urge the Court to accept the applicant’s request for a referral that would allow the Grand Chamber to reconsider these issues, taking into account the points raised by the signatories in this letter. There is no question in our minds that the current case raises “a serious question affecting the interpretation” of Article 10 of the Convention as well as “a serious issue of general importance” (Art. 43).
Sincerely,
Algemene Vereniging van Beroepsjournalisten in België
American Society of News Editors
ARTICLE 19
Association of American Publishers, Inc
Association of European Journalists
Bloomberg
bvba Les Journaux Francophones Belges
Center for Democracy and Technology
Conde Nast International Ltd.
Daily Beast Company, LLC
Digital First Media, LLC
Digital Media Law Project, Berkman Center for Internet & Society – Harvard University
Digital Rights Ireland
Dow Jones
Electronic Frontier Finland
Estonian Newspapers Assocation (Eesti Ajalehtede Liit)
EURALO (ICANN’s European At-Large Organization)
European Digital Rights (EDRi)
European Information Society Institute (EISi)
European Magazine Media Association
European Media Platform
European Newspaper Publishers’ Association (ENPA)
European Publishers Council
Federatie van periodieke pers, the Ppress
Forbes
Global Voices Advocacy
Google, Inc.
Greenpeace
Guardian News & Media Limited
Human Rights Center, Ghent University
Hungarian Civil Liberties Union
iMinds-KU Leuven, Interdisciplinary Centre for Law and ICT
Index on Censorship
International Press Institute
Internet Democracy Project
La Quadrature du Net
Lithuanian Online Media Association
Mass Media Defence Center
Media Foundation Leipzig
Media Law Resource Center
Media Legal Defence Initiative
National Press Photographers Association
National Public Radio
Nederlands Genootschap van Hoofdredacteuren
Nederlands Uitgeversverbond (NUV)
Nederlandse Vereniging van Journalisten
Net Users’ Rights Protection Association
News Corp.
Newspaper Association of America
North Jersey Media Group, Inc
NRC Handelsblad
Online News Association
Open Media Coalition – Italy
Open Rights Group
Panoptykon
PEN International
PEN-Vlaanderen
Persvrijheidsfonds
Raad voor de Journalistiek
Radio Television Digital News Association
Raycom Media, Inc.
Reporters Committee for Freedom of the Press
Sanoma Media Netherlands B.V.
Telegraaf Media Groep NV
The New York Times Company
Thomson Reuters
Vlaamse Nieuwsmedia
Vlaamse Vereniging van Journalisten
Vrijschrift
World Association of Newspapers and News Publishers
[1] Times Newspapers Ltd v. the United Kingdom (Nos. 1 and 2), Judgment of 10 March 2009, para. 27. See also Editorial Board of Pravoye Delo and Shtekel v. Ukraine, Judgment of 5 May 2011.
[2] Judgment of 18 December 2012, para. 54.
[3] Declaration on freedom of communication on the Internet, 28 May 2003, adopted at the 840th meeting of the Ministers’ Deputies.
[4] The CJEU has ruled, with reference inter alia to Article 10 ECHR, that an Internet service provider cannot be required to install a system filtering (scanning) all electronic communication passing through its services as this would amount to a preventive measure and a disproportionate interference with its users’ freedom of expression and information. See Scarlet v. Sabam, Case C-70/10, Judgment of 24 November 2011; and Netlog v. Sabam, Case C-360/10, Judgment of 16 February 2012.
[5] J19 & Anor v Facebook Ireland [2013] NIQB 113 (15 November 2013), at http://www.bailii.org/nie/cases/NIHC/QB/2013/113.html.
14 Jan 2014 | Europe and Central Asia, European Union, News, Politics and Society
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
In the aftermath of the Arab Spring, the EU shifted its neighbourhood policy in the southern neighbourhood. In response to the revolutions and social movements in the region, the EU shifted the focus of its neighbourhood policy from economic development towards human rights. On 8 May 2011, the EU High Representative and the European Commission issued a joint communication proposing “A partnership for democracy and shared prosperity with the southern Mediterranean“.
The EU now emphasises the “three Ms”: money, market access and mobility, with the first “M” addressing the EU’s commitment to financially support transition to democracy and civil society. The strategy also heralded the creation of the Civil Society Facility for the neighbourhood (covering both the southern and eastern neighbourhoods), with an overall budget of €26.4 million for 2011 to strengthen civil society. In parallel, the European Instrument for Democracy and Human Rights (EIDHR) deployed a number of operations in the region to protect and promote freedom of expression, often without the consent of the host country.
The apparent efforts to promote freedom of expression in the southern neighbourhood after the Arab Spring are in stark contrast to the multilateral partnerships that the EU actually established, often with the now overthrown dictatorships. The Euro-Mediterranean Partnership (EUROMED), also known as the Union for the Mediterranean (UfM) and formerly known as the Barcelona Process, was re-launched in 2008 as a multilateral partnership between the EU member states and 15 Mediterranean partner countries in the EU’s southern neighbourhood. Of the UfM’s six key initiatives launched prior to the Arab Spring, none related to the promotion of human rights. EU member states that border the Mediterranean Sea, in particular Italy, Spain and France, emphasised cooperation on migration, energy supplies and help with counter-terrorism, while adopting a relatively passive approach toward democracy and human rights.
Critics contend the UfM was overly concerned with regional security and economic partnership at the expense of human rights, including the right to freedom of expression. For example, in spring 2010, the EU began negotiations with Tunisia on advanced status within the European Neighbourhood Policy, with clear economic benefits for the country, even though, at the same time, the Ben Ali regime was clamping down on freedom of expression. Ben Ali’s government even introduced a draconian NGO law during the period of the advanced status talks, in an attempt to prevent Tunisian activists from lobbying the EU to be tougher on human rights issues. As a result, even with the new “three Ms” strategy, the EU and its member states suffer from a legacy credibility problem in the region and are often seen as former allies of repressive regimes.
The EU has continued to lack unity on the use of conditionality to enhance political and human rights reform. Germany, Finland and the Netherlands have generally been more supportive of this reform, whereas Italy and Portugal are less keen on penalising countries for failing to introduce reform. According to a survey of over 700 experts initiated by the European Commission, both the UfM and the EU have failed to deliver the expectations of key regional actors, 93% of those interviewed called on the EU to have a greater role in the region. The survey indicated that Turkey was perceived as the most active country in the region on the promotion of human rights, ahead of the US, followed by all EU countries combined.
In its near neighbourhood, the EU has had mixed levels of success in promoting freedom of expression. Enlargement continues to be the most effective tool at the EU’s disposal in incentivising countries to improve their domestic situation for freedom of expression. With enlargement slowing, this leverage may diminish and other levels have become important. Therefore, it is arguable that the Eastern Partnership and southern neighbourhood policy are test cases for how effective the EU can be beyond enlargement. Yet, with key regional actors in both the eastern and southern neighbourhoods all too aware of the EU’s failings, and with expectations high as to what the EU can achieve, ensuring these policies are strategic and sustained in their demands for freedom of expression is essential.
