13 Jan 2014 | Europe and Central Asia, European Union, Politics and Society
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
Collectively, the European Union of 28 member states has an important role to play in the promotion of freedom of expression in the world. Firstly, as the world’s largest economic trading block with 500 million people that accounts for about a quarter of total global economic output, it still has significant economic power. Secondly, it is one of the world’s largest “values block” with a collective commitment to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and perhaps more significantly, the European Convention on Human Rights. The Convention is still one of the leading supranational human rights treaties, with the possibility of enforcement and redress. Finally, Europe accounts for two of the five seats on the UN Security Council (Britain and France), so has a crucial place in the global security framework. The EU itself has limited foreign policy and security powers (although these powers have been enhanced in recent years), leaving significant importance to the foreign policies of the member states. Where the EU acts with a common approach it has leverage to help promote and defend freedom of expression globally.
How the European Union supports freedom of expression abroad
The European Union has a number of instruments and institutions at its disposal to promote freedom of expression in the wider world, including its place as an observer at international fora, its bilateral and regional agreements, the European External Action Service (EEAS) and geographic policies and instruments including the European Neighbourhood Policy (ENP) and the European Neighbouring and Partnership Instrument (ENPI). The EU places human rights in its trade and aid agreements with third party countries and has over 30 stand-alone human rights dialogues. The EU also provides financial support for freedom of expression through the European Development Fund (EDF), the Development Co-operation Instrument (DCI), the European Instrument for democracy and human rights (EIDHR) and the European Endowment for Democracy (EED). The EU now also has a Special Representative for Human Rights. Since 1999, the EU has published an annual report on human rights and democracy in the world. The latest report, adopted in June 2012, contains a special section on freedom of expression, including freedom of expression and “new media”. It recalls the EU’s commitment to “fight for the respect of freedom of expression and to guarantee that pluralism of the media is respected” and emphasises the EU’s support to free expression on the internet.
The European Union has two mechanisms to financially support freedom of expression globally: the European Instrument for democracy and human rights (EIDHR) and the European Endowment for Democracy (EED). The latter was specially created after the Arab Spring in order to resolve specific criticism of the EIDHR: that it didn’t support political parties, non-registered NGOs and trade unions and could not react quickly to events on the ground. The EED is funded by, but is autonomous from, the European Commission, with support from member states and Switzerland. The aims of the EED, to provide rapid and flexible funding for pro-democratic activists in authoritarian states and democratic transitions, is potentially a “paradigm shift” according to experts that will have to overcome a number of challenges, in particular a hesitation towards funding political parties and the most active and confrontational of human rights activists. The EU also engages with the UN on human rights issues at the Human Rights Council (HRC) and in the 3rd Committee of the General Assembly. The EU, as an observer along with its member states, is one of the more active defenders of freedom of expression in the HRC. Promoting and protecting freedom of expression was one of the EU’s priorities for the 67th Session of the UN General Assembly (September 2012-2013). The European Union was also instrumental in the adoption of a resolution on the “Safety of Journalists” (drafted by Austria) in September 2012. The European Union is most effective at the HRC where there is a clear consensus among member states within the Union . Where there is not, for instance on the issue of blasphemy laws, the Union has been less effective at promoting freedom of expression.
The EU and its neighbourhood
The EU has had mixed success in promoting freedom of expression in its near neighbourhood. Enlargement has clearly been one of the European Union’s most effective foreign policy tools. Enlargement has had a substantial impact both on the candidate countries’ transition to democracy and respect for human rights. With enlargement slowing, the leverage the EU has on its neighbourhood is under pressure. Alongside enlargement, the EU engages with a number of foreign policy strategies in its neighbourhood, including the Eastern Partnership and the partnership for democracy and shared prosperity with the southern Mediterranean. This section will look at the effectiveness of these policies and where the EU can have influence.
The EU and freedom of expression in its eastern neighbourhood
Europe’s eastern neighbourhood is home to some of the least free places for freedom of expression. The collapse of the former Soviet Union and the enlargement of the European Union has significantly improved human rights in eastern Europe. There is a marked difference between the leverage the European Union has on countries where enlargement is a real prospect and the wider eastern neighbourhood, where it is not, in particular for Russia and Central Asia. In these countries, the EU’s influence is more marginal. Enlargement has clearly had a substantial impact both on the candidate countries’ transition to democracy and their respect for human rights because since the Treaty of Amsterdam, respect for human rights has been a condition of accession to the EU. In 1997, the Copenhagen criteria were outlined in priorities that became “accession partnerships” adopted by the EU and which mapped out the criteria for admission to the EU. They related in particular, to freedom of expression issues that needed to be rectified. With the enlargement process slowing since the “big bang” in 2004, and countries such as Ukraine and Moldova having no realistic prospect of membership regardless of their human rights record, the influence of the EU is waning in the wider eastern neighbourhood.
After enlargement, the Eastern Partnership is the primary foreign policy tool of the European Union in this region. Launched in 2009, the initiative derives from the EU’s Neighbourhood Policy (ENP), which is specific about the importance of democracy, the rule of law and respect for human rights. In this region, the partnership covers Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine. Freedom of expression has been raised consistently during human rights dialogues with these six states and in the accompanying Civil Society Forum. The Civil Society Forum has also been useful in helping to coordinate the EU’s efforts in supporting civil society in this region. Although it has never been the main aim of the Eastern Partnership to promote freedom of expression, it has had variable success in promoting this right with concrete but limited achievements in Belarus, the Ukraine, Georgia and Moldova; with a more ineffectual role being seen in Azerbaijan.
In recent years, since the increased input of the EEAS in the ENP, the policy has become more markedly political, with a greater emphasis on democratisation and human rights including freedom of expression after a slow start. In particular, freedom of expression was raised as a focus for the ENP after its review in 2010-2011. This is a welcome development, in marked contrast to the technical reports of previous years. This also echoes the increased political pressure from member states that have been more public in their condemnation of human rights violations, in particular regarding Belarus. Belarus is one Eastern Partnership country where the EU has exerted a limited amount of influence. The EU enhanced its pressure on the country after the post-presidential election clampdown beginning in December 2010, employing targeted sanctions and increasing support to civil society. This has arguably helped secure the release of some of the political prisoners the regime detained. Yet the lack of a strong sense of strategy and unity within the Union has hampered this new pressure to deliver more concrete results. Likewise, the EU’s position on Ukraine has been set back by internal divisions, even though the EU’s negotiations on the Association Agreement included specific reference to freedom of expression.
In Azerbaijan, the EU’s strategic oil and gas interests have blunted criticism of the country’s poor freedom of expression record. Azerbaijan holds over 89 political prisoners, significantly more than in Belarus, yet the EU’s institutions, individual member states and European politicians have failed to be vocal about these detentions, or other freedom of expression violations. In the EU’s wider neighbourhood outside the Eastern Partnership, the EU has taken a less strategic approach and accordingly has been less successful in either raising freedom of expression violations or helping to prevent them.
The European Union’s relationship with Russia has not been coherent on freedom of expression violations. While the institutions of the EU have criticised specific freedom of expression violations, such as the Pussy Riot sentencing, they were slow to criticise more sustained attacks on free speech such as the clampdown on civil society and the inspections of NGOs using the new Foreign Agents Law. The progress report of EU-Russia Dialogue for Modernisation fails to mention any specific freedom of expression violations in Russia. The EU has also limited its financial involvement in supporting freedom of expression in Russia, unlike in other post-Soviet states. The EU is not united on this criticism: individual European Union member states such as Sweden and the UK are more sustained in their criticisms of Russia’s free speech violations, whereas other member states such as Germany tend to be less critical. It is argued that Russia’s powerful economic interests have facilitated a significant lobbying operation including former politicians that works to reduce criticism of Russia’s freedom of expression violations.
In this region, the European Union’s protection of freedom of expression is weakest in Central Asia. While the EU has human rights dialogues with Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan, it has not acted strategically to protect freedom of expression in these countries. The EU dramatically reduced its leverage in Uzbekistan in 2009 by relaxing arms sanctions with little in return from the Uzbek authorities, who continue to fail to abide by international human rights standards. Arbitrary arrests, beatings and torture at the hands of the security services, as well as unfair trials of the regime’s critics are all commonplace. The European Parliament’s special rapporteur report of November 2012, took a tough stance on human rights in Kazakhstan, making partnership conditional on respect for Article 10 rights. But, this was undermined by High Representative Baroness Ashton’s visit to the country in November 2012, where she failed to raise human rights violations at all.
This lack of willingness to broach freedom of expression issues continued during Baroness Ashton’s first official visit to four of the five Central Asian republics: Kyrgyzstan, Uzbekistan, Tajikistan and Kazakhstan. In Kyrgyzstan she additionally attended an EU-Central Asia ministerial meeting, where the Turkmen government (one of the top five most restrictive countries in the world for freedom of expression) was represented. Baroness Ashton’s lack of vocal support for human rights was condemned by local NGOs and international watchdogs.
10 Jan 2014 | Digital Freedom, Europe and Central Asia, European Union, News
(Illustration: Shutterstock)
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
The EU has made a number of positive contributions to digital freedom: it plays a positive part in the global debate on internet governance; the EU’s No-Disconnect Strategy, its freedom of expression guidelines and its export controls on surveillance equipment have all be useful contributions to the digital freedom debate, offering practical measures to better protect freedom of expression. Comparatively, some of the EU’s member states are amongst the world’s best for protecting online freedom. The World Wide Web Foundation places Sweden at the top of its 2012 Index of internet growth, utility and impact, with the UK, Finland, Norway and Ireland also in the top 10. Freedom House ranks all EU member states as “free”, and an EU member state, Estonia, ranks number one globally in the organisation’s annual survey, “Freedom in the World”. But these indices merely represent a snapshot of the situation and even those states ranked as free fail to fully uphold their freedom of expression obligations, online as well as offline.
As the recent revelations by whistleblower Edward Snowden have exposed, although EU member states may in public be committed to a free and open internet, in secret, national governments have been involved in a significant amount of surveillance that breaches international human rights norms, as well as these governments’ own legal commitments. It is also the case that across the EU, other issues continue to chill freedom of expression, including the removal or takedown of legitimate content.
The EU’s position on digital freedom is analysed in more detail in Index on Censorship’s policy paper “Is the EU heading in the right direction on digital freedom?” The paper points out that the EU still lacks a coherent overarching strategy and set of principles for promoting and defending freedom of expression in the digital sphere.
Surveillance
Recent revelations by former US National Security Agency (NSA) whistleblower Edward Snowden into the NSA’s PRISM programme have also exposed that mass state surveillance by EU governments is practised within the EU, including in the UK and France.
Mass or blanket surveillance contravenes Article 8 (the right to respect for private and family life) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights. In its jurisprudence, the European Court of Human Rights has repeatedly stated that surveillance, if conducted without adequate judicial oversight and with no effective safeguards against abuse, will never be compatible with the European Convention.[1]
This state surveillance also breaches pledges EU member states have made as part of the EU’s new cybersecurity strategy, which was agreed in February 2013 and addresses mass state surveillance. The Commission stated that cybersecurity is predominantly the responsibility of member states, an approach some have argued gives member states the green light for increased government surveillance. Because the strategy explicitly states that “increased global connectivity should not be accompanied by censorship or mass surveillance”, member states were called upon to address their adherence to this principle at the European Council meeting on 24th October 2013. The Council was asked to address revelations that external government surveillance efforts, such as the US National Security Agency’s Prism programme, undermining EU citizens’ rights to privacy and free expression. While the Council did discuss surveillance, as yet there has been no common EU position on these issues.
At the same time, the EU has also played a role in laying the foundations for increased surveillance of EU citizens. In 2002, the EU e-Privacy Directive introduced the possibility for member states to pass laws mandating the retention of communications data for security purposes. In 2006, the EU amended the e-Privacy Directive by enacting the Data Retention Directive (Directive 2006/24/EC), which obliges member states to require communications providers to retain communications data for a period of between six months and two years, which could result in member states collecting a pool of data without specifying the reasons for such practice. A number of individual member states, including Germany, Romania and the Czech Republic, have consulted the European Convention on Human Rights and their constitutions and have found that the mass retention of individual data through the Data Retention Directive to be illegal.
While some EU member states are accused of colluding in mass population surveillance, others have some of the strongest protections anywhere globally to protect their citizens against surveillance. Two EU member states, Luxembourg and the Czech Republic, require that individuals who are placed under secret surveillance to be notified. Other EU member states have expanded their use of state surveillance, in particular Austria, the UK and Bulgaria. Citizens of Poland are subject to more phone tapping and surveillance than any other citizens in the European Union; the European Commission has claimed the police and secret services accessed as many as 1,300,000 phone bills in 2010 without any oversight either by the courts or the public prosecutor.
Internet governance
At a global level the EU has argued for no top-down state control of internet governance. There are efforts by a number of states including Russia, China and Iran to increase state control of the internet through the International Telecommunication Union (ITU). The debate on global internet governance came to a head at the Dubai World Conference on International Telecommunications (WCIT) summit at the end of 2012 which brought together 193 member states. At the WCIT, a number of influential emerging democratic powers aligned with a top-down approach with increased state intervention in the governance of the internet. On the other side, EU member states, India and the US argued the internet should remain governed by an open and collaborative multistakeholder approach. The EU’s influence could be seen through the common position adopted by the member states. The European Commission as a non-voting WCIT observer produced a common position for member states that opposed any new treaty on internet governance under the UN’s auspices. The position ruled out any attempts to make the ITU recommendations binding and would only back technology neutral proposals – but made no mention of free expression. The absence of this right is of concern as other rights including privacy (which was mentioned) do not always align with free speech. After negotiations behind closed doors, all 27 EU member states and another 28 countries including the US abstained from signing the final treaty. That states with significant populations and rising influence in their regions did not back the EU and leant towards more top-down control of the internet should be of significant concern for the EU.
Intermediate liability, takedown and filtering
European laws on intermediate liability, takedown and filtering are overly vague in defining what constitutes valid and legitimate takedown requests, which can lead to legal uncertainty for both web operators and users. Removal of content without a court order can be problematic as it places the content host in the position of judge and jury over content and inevitably leads to censorship of free expression by private actors. EU directorate DG MARKT[2] is currently looking into the results of a public consultation into how takedown requests affect freedom of expression, among other issues. It is expected that the directorate will outline a directive or communication on the criteria takedown requests must meet and the evidence threshold required, while also clarifying how “expeditiously” intermediaries must act to avoid liability. A policy that clarifies companies’ legal responsibilities when presented with takedown requests should help better protect online content from takedown where there is no legal basis for the complaint.
The EU must take steps to protect web operators from vexatious claims from individuals over content that is not illegal. Across the EU, the governments of member states are increasingly using takedown requests. Google has seen a doubling of requests from the governments of Germany, Hungary, Poland and Portugal from 2010-2012; a 45% increase from Belgium and double-digit growth in the Netherlands, Spain and the UK. Governments are taking content down for dubious reasons that may infringe Article 10 rights of the ECHR. In 2010, a number of takedown requests were made in response to ‘”government criticism” and four in response to “religious offence”. A significant 8% of takedown requests were in response to defamation offences. With regard to defamation charges, it must be noted that the public interest is not protected equally across all EU countries (see Defamation above).
Although corporate takedown is more prevalent than state takedown, particularly in the number of individual URLs affected, the outcome of the DG MARKT consultation must be to address both vexatious state and corporate takedown requests. The new communication or directive must be clearer than the EU e-Commerce directive has been with respect to the responsibility of member states. While creating a legal framework that was intended to protect internet intermediaries, the EU e-Commerce directive has failed to be entirely effective in a number of high-profile cases. EU member states use filters to prevent the distribution of child pornography with questionable effectiveness. However, filters have not been used by states to block other content after a Court of Justice of the European Union ruling stated EU law did not allow states to require internet service providers to install filtering systems to prevent the illegal distribution of content. The Court made it clear at the time that such filtering would require ISPs to monitor internet traffic, an infringement under EU law. This has granted European citizens strong protections against systematic web filtering on behalf of states. There continue to be legal attempts to force internet intermediaries to block content that is already in the public domain. In a recent case, brought by the Spanish Data Protection authority on behalf of a complainant, the authority demanded that the search engine Google remove results that pointed to an auction note for a reposessed home due to social security debts. The claimant insisted that referring to his past debts infringed on his right to privacy and asked for the search results to be removed. In June 2013, the Advocate General of the European Court of Justice decided Google did not need to comply to the request to block “legal and legitimate information that has entered the public domain” and that it is not required to remove information posted by third parties. Google has estimated that there are 180 cases similar to this one in Spain alone. A final decision in the case is expected before the end of this year, which could have profound implications for intermediate liability.
[1] In Liberty v. UK (58243/00) the ECHR stated: “95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed”; A. v. France (application no. 14838/89), 23.11.1993: found a violation of Article 8 after a recording was carried out without following a judicial procedure and which had not been ordered by an investigating judge; Drakšas v. Lithuania, 31.07.2012, found a violation of Article 13 (right to an effective remedy) on account of the absence of a judicial review of the applicant’s surveillance after 17 September 2003.
[2] The Internal Market and Services Directorate General
10 Jan 2014 | Belarus, News
Ales Bialiatski has been imprisoned in Belarus since 2011 (Image: AmnistieWeb/YouTube)
According to Belarusian authorities, a book by political prisoner Ales Bialiatski can “damage the image” of the country.
That was confirmed in a recent letter from the Ashmiany regional customs office to Tatsiana Raviaka, Bialiatski’s colleague from Human Rights Centre Viasna. In July 2013 its officers confiscated 40 copies of Bialiatski’s book “Enlightened by Belarus”, as they were being transferred from Lithuania, where they had been published, to Belarus. Now Raviaka has been told to “re-export the copies of the book to Lithuania” as it has been included on a blacklist of goods that are barred from the territory of the Customs Union of Belarus, Russia and Kazakhstan.
The exact reason for including Bialiatski’s book on the list is not mentioned. After it was first inspected, authorities conclude it could “be harmful for the image of the Republic of Belarus”. However, the State Customs Committee of Belarus itself admitted this justification did not match the legal requirements for a ban, and a second inspection was initiated. The results of this are unknown, besides providing ground for banning the book.
“I am sure the real reason for such close attention to the book is the personality of its author,” Tatsiana Raviaka told Index. “Ales Bialiatski is a well-known human rights defender and he serves a prison term at the moment. Several parts of the book were actually written while he was in prison.”
The actual contents of the book may also play a part in the decision to ban it. “Enlightened by Belarus” is a collection of essays on the history of the Belarusian literature. Before joining the human rights movement he was a post-graduate student at the National Academy of Science and a director of Maksim Bahdanovich literature museum in Minsk. Several essays contain critical assessments of literary works by Belarusian political prisoners, like Uladzimir Niakliaeu and Aliaksandr Fiaduta, written behind bars as they had been arrested after protests on 19 December 2010.
“Ales introduced a notion of ‘Belarusian prison literature’. In fact his book points out that for decades writers in Belarus have been persecuted and put in prisons, from the times of the Czar Russia and Soviet repression, to present day,” says Tatsiana Raviaka, adding that the state censors cannot allow free distribution of the views on the literary process presented in Bialiatski’s book. She and her colleagues from Human Rights Centre Viasna are going to appeal the ban.
Ashmiany regional customs office is known for its close attention to “dissent literature.” In April 2013 it confiscated a Belarus Press Photo album, which a court later ruled to be “extremist”.
Ales Bialiatski was arrested on 4 August 2011 and later sentenced to four-and-a-half years in prison. Despite charges of tax evasion, the country’s civil society and the international community see his prison sentence as punishment for his principled stance in support of human rights in Belarus.
16 Dec 2013 | Digital Freedom, Vietnam
(Photo: Shutterstock)
Vietnam has so far this year locked up more internet bloggers than in 2012. Vietnamese bloggers were therefore quick to react when, along with China, Russia, Saudi Arabia, Algeria and Cuba, the communist country was elected to the United Nations Human Rights Council (UNHRC) for 2014-2016 term by creating and launching a new instrument for free expression: the Network of Vietnamese Bloggers (NVB).
The network aims to ensure that the Vietnamese government implements its obligations and commitments to the UNHRC through actions rather than mere political statements. Stating that, as Vietnam’s membership to the UNHRC means that all of its 90 million citizens are now members of the Council, the NVB will strive to uphold core values in the promoting and protection of human rights.
In order to do this it believes that Vietnam should:
- Agree to the 7 UN requests not yet met by the Vietnamese government which would allow UN delegates to visit Vietnam to investigate alleged human rights violations,
- End torture, cruel, inhuman and degrading treatment and punishment of any and all Vietnamese citizens,
- Release those currently imprisoned solely for peacefully exercising their freedom of expression and other rights based on core and universal values of UN treaties,
- Repeal vaguely-worded laws and decrees which are arbitrarily interpreted,
- End the state monopoly on media and publishing, ensure that all individuals and organisations are entitled to establish media agencies and publishing house,
- Remove firewalls that bar users accessing social media networks.
Chi Dang, Director of Overseas Support for the Free Journalist Network in Vietnam, stated that it was crucial that the launch of the network had international support as this has “proven to provide effective protection for our bloggers on the ground”.
The launch of the network will coincide with the International Human Rights Day on December 10.
This article was published on 16 Dec 2013 at indexoncensorship.org
