21 Aug 2013 | Digital Freedom, Germany, Index Reports, News and features, Politics and Society, Religion and Culture
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The situation with regards to freedom of expression in Germany is largely positive. Freedom of expression is protected by the German Constitution and basic laws. There is room for improvement, with Germany’s hate speech and libel laws being particularly severe.
Germany’s biggest limits on freedom of expression are due to its strict hate speech legislation which criminalises incitement to violence or hatred. Germany has particularly strict laws on the promotion or glorification of Nazism, or Holocaust denial with paragraph 130(3) of the German Criminal Code stipulating that those who ‘publicly or in an assembly approve, deny, or trivialise’ the Holocaust are liable to up to five years in prison or a monetary fine. Hate speech also extends to insulting segments of the population or a national, racial or religious group, or one characterised by its ethnic customs.
Germany still has strict provisions in the criminal code providing penalties for defamation of the President, insulting the Federal Republic, its states, the flag, and the national anthem. However, in 2000, the Federal Constitutional Court stated that even harsh political criticism, however unjust, does not constitute insulting the Republic. The criminal code however remains in place.
Freedom of religious expression is compromised through anti-blasphemy laws criminalising ‘offences related to religion and ideology’. Paragraph 166 of the Criminal Code prohibits defamation against ‘a church or other religious or ideological association within Germany, or their institutions or customs’. While very few people (just 10) have been convicted under the blasphemy legislation since 1969, the impact of hate speech legislation is seen more frequently, in particular in the prosecution of religious offences. In 2006, a pensioner in the state of North Rhine-Westphalia was given a 1-year suspended sentence for printing ‘The Koran, the Holy Koran’ on toilet paper, and sending it to 22 Mosques and Muslim community centres. In 2011, nine of the 18 operators of the far right online radio programme ‘Resistance Radio’ were given between 21 months and three years in prison for inciting hatred.
Germany has also seen heated debate over a widespread ban on religious symbols in public workplaces, especially affecting Muslim women who wear headscarves, which limits, as a result, freedom of religious expression. Half of Germany’s 16 states have, to various extents, banned teachers and civil servants from wearing religious symbols at work. Yet this is not applied equally to all religions, five states have made exceptions for Christian religious symbols.
Media freedom
Government and political interference in the media sector continues to raise concerns for media independence, with several incidents of interventions by politicians attempting to influence editorial policy. In 2009, chief editor of public service broadcaster ZDF, Nikolaus Brender saw his contract terminated by a board featuring several politicians from the ruling Christian Democratic Union. Reporters Without Borders labelled it a ‘blatant violation of the principle of independence of public broadcasters.’ In 2011, the editor of Bild, the country’s biggest newspaper, received a voicemail message from President Christian Wulff, who threatened ‘war’ on the tabloid which reported on unusual personal loan he received.
Media plurality is strong among regional newspapers though due to financial pressure, media plurality declined in 2009 and 2010. Germany has one of the most concentrated TV markets in Europe, with 82% of total TV advertising spend shared among just 2 main TV stations in Germany. This gives a significant amount of influence to just 2 broadcasters and the majority of Germans still receive their daily news from the television.
The legal framework for the media is generally positive with accessible public interest defences for journalists in the law of privacy and defamation. However, Germany still has criminal provisions in its defamation law, which although unused, remain in the penal code. Germany’s civil defamation law is medium to low cost in comparison with other European jurisdictions, places the burden of proof on the claimant (a protection to freedom of expression) and contains a responsible journalism defence, although not a broader public interest defence.
Digital
The digital sphere in Germany has remained relatively free with judicial oversight over content takedown, protections for online privacy and a high level of internet penetration (83% of Germans are online). Germany’s Federal Court of Justice has ruled that access to the internet is a basic right in modern society. Section 184b of the German Penal Code ‘states that it is a criminal offense to disseminate, publicly display, present or otherwise make accessible any pornographic material showing sexual activities performed by, on or in the presence of a child.’ Germany has also ratified and put into the law the Council of Europe’s Convention on Cyber Crimes from 2001. Mobile operators also signed up to a Code of Conduct in 2005, which includes a commitment to a dual system of identification and authentication to protect children from harmful content. This was reaffirmed and made binding in 2007.
There are concerns over the increased use of surveillance of online communications, especially since a new antiterrorism law took effect in 2009.
In 2011, German authorities acquired the license for a type of spyware called FinSpy, produced by the British Gamma Group. This spyware can bypass anti-virus software and can extract data from the device it is targeting. Two reports by the German Parliamentary Control Panel, from 2009 and 2010, stated that several German intelligence units had monitored emails with the amount of surveillance increasing from 7 million pieces items in 2009 to 37 million in 2010. However, Germany’s Constitutional Court ruled in February that intelligence agencies are only allowed to collect data secretly from suspects’ computers if there is evidence that human lives or state property are in danger and the authorities must get a court order before they secretly upload spyware to a suspect’s computer.
Germany’s tough hate speech legislation also chills free speech online. In January 2012, Twitter adopted a new global policy allowing the company to delete tweets if countries request it, meaning that tweets become subject to Germany’s hate speech laws. The latest Twitter transparency report states that German government agencies asked for just 2 items to be removed. In October 2012, Twitter also blocked the account of a far-right German group, Better Hannover, after a police investigation.
Artistic freedom
Artists can work relatively freely in Germany. Freedom of expression in arts is protected under the Constitution, and is largely respected, especially for satire or comedy. Yet, the freedom of expression of artists is chilled through strict hate speech and blasphemy laws.
The German authorities very rarely use blasphemy laws against artists[xiv]. However, there have been several examples of art being subjected to censorship due to religious offence. In 2012, at the exhibition ‘Caricatura VI – The Comic Art – analog, digital, international’ in Kassel, a cartoon created by cartoonist Mario Lars was removed after protests that it offended religious sensibilities.
There is persistent sensitivity around artistic works depicting the Nazi period. In April 2013, the German version of an Icelandic author’s book was ‘censored’ by its publisher, who cut 30 chapters from Hallgrímur Helga’s novel, ‘The woman at 1000°’. Key passages about Hitler, concentration camps and SS were censored to fit the German market.
20 Aug 2013 | Digital Freedom, Index Reports, News and features, Politics and Society, Religion and Culture, Russia
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The situation for freedom of expression, freedom of assembly and association in Russia has deteriorated since the re-election of Vladimir Putin in March 2012. The main issues of concern are repression against Russian NGOs, strict anti-blasphemy laws, increasing limits on digital freedom, the banning of “homosexual propaganda” and the re-criminalisation of libel.
Amendments to the law on Non-Governmental Organisations, adopted in July 2012, forced all NGOs that receive funds from abroad to register as “foreign agents” (a highly charged phrase, synonymous with “spy”) if they are involved in “political activities”, the latter term being very broadly defined. During March 2013, dozens of NGOs in Russia were inspected to determine whether their activities comply with current legislation. This potentially endangers the activities of NGOs in Russia including those working on freedom of expression and human rights groups.
Freedom of religious expression has been compromised through anti-extremism legislation that allows selective implementation of its ambiguous definitions. An anti-blasphemy law that provides for prison terms or fines for offending religious feeling was passed by Russia’s parliament in April 2013.
The attitude of the authorities to whistle-blowers has been highlighted through the authorities’ posthumously trial of lawyer Sergei Magnitsky. Magnitsky investigated cases of corruption among high-ranking Russian officials; he died in prison in 2009 in pre-trial detention and no one has ever been charged with his death.
Freedom of expression in the LGBT community has been restricted after the State Duma adopted a law prohibiting the promotion of homosexuality. Similar laws were previously introduced at the regional level in 11 administrative entities of the Russian Federation, including the second largest city St. Petersburg.
Media Freedom
Russia continues to be one of the most dangerous countries in the world for journalists. According to the Committee to Protect Journalists, 54 reporters have been killed in Russia since 1992, with 16 cases still unsolved. Impunity remains a significant problem for journalists: on-going threats of violence are rarely investigated properly by the authorities. The killers of Natalia Estemirova, Abdulmalik Akhmedilov, Khadzhimurad Kamalov and other prominent investigative reporters have never been prosecuted; nor have the organisers of Anna Politkovskaya’s murder.
In July 2012, criminal libel was reintroduced by the State Duma into the criminal code after being decriminalized in November 2011. Defamation laws are used to silence the press. Dmitry Muratov, the editor-in-chief of Novaya Gazeta, says courts are used as a censorship instrument in Russia. His newspaper lost three libel appeals in just one week in November 2011, all issued by the Department of Presidential Affairs after they published investigative journalism into federal budget spending.
Other legislative challenges to media freedom in Russia include a law on high treason that endangers Russian journalists who work for the international media, as it prohibits providing information to foreign countries, and a law that forbids the media from using obscene words. Another draft law will classify media outlets that receive more than 50 per cent of their revenues from abroad as “foreign agents”.
The genuine diversity of media ownership in Russia is questionable. Opinion polls by the Levada Centre show that 69 per cent of Russian citizens consider the three state-owned TV channels to be the primary source of their information. Most of the other national media outlets are either co-owned by the state, or belong to oligarchs who have relationships with the Kremlin. Several top managers and editors recently were fired or resigned from their positions in Kommersant and Gazeta.ru in protest against their owners’ intrusion into editorial policies. Several independent online publications critical of the authorities were closed down by their owners.
The lack of independent political and investigative reporting is not likely to be rectified by the launch of a new channel “Public Television of Russia”, scheduled for May 2013. While the new channel has been described as a public service broadcaster “equally independent from the state and advertising”, it will in fact rely on government funding. Furthermore, its CEO is appointed directly by the President of Russia, casting further doubts over its editorial independence.
Digital Freedom
As internet use grows in Russia, the authorities have introduced new restrictive laws that challenge free expression online and allow filtering and blocking of content. Federal Law No. 139-FZ, adopted in July 2012 created a blacklist of sites with “harmful” information under a pretext of child protection. The law suggested broad and ambiguous definitions that allow extrajudicial censorship of online content. Roskomnadzor, a dedicated state agency, compiles a black list of web-pages that contain child pornography, “extremist materials” and information on suicide or drug use. ISPs are obliged by the law to block all the blacklisted web-pages.
Extensive online censorship is accompanied by surveillance of Russians’ online activities. SORM, a nation-wide surveillance system, operated with Deep Packet Inspection (DPI) technology, allows the state security force not only to control, but even to intrude into the internet traffic of any internet user in Russia without any special permit or court decision.
There was a series of cyber-attacks on the websites of independent Russian media outlets, such as Kommersant, Ekho Moskvy, Bolshoi Gorod, Dozhd’ TV and Slon.ru, during the street protests in May 2012. No one has been prosecuted for these attacks.
Artistic Freedom
As the authorities of the country try to increase its electoral support among more conservative layers of society, they rely more on support of the Russian Orthodox Church. Increasingly close political relationships between the state and the church account for much of the persecution of artists and censorship of arts on grounds of “protecting of traditional values”. One of the recent draft laws, adopted by the parliament in the first reading, provides for five years in prison for “insulting believers’ feelings”. Reports talk about increasing self-censorship among artists; several cases of prosecution were noted as well.
In August 2012 Nadezhda Tolokonnikova, Maria Alekhina, and Ekaterina Samutsevich, members of punk group Pussy Riot, were each sentenced to two years imprisonment for organising a “punk prayer” in the Cathedral of Christ the Saviour in Moscow. Despite the group claiming their performance was an artistic act of political protest against President Putin’s regime, they were found guilty of “hooliganism motivated by religious hatred.” In October 2012, Samutsevich was released on probation, but sentences against the other two members of the band were upheld.
Anti-extremist laws and articles of the Criminal Code relating to incitement to religious hatred have long been used for censorship of art in Russia. In July 2010 art curators Andrei Erofeev and Yuri Samodurov were fined for organising the Forbidden Art 2006 exhibition in Moscow, after several of the works were claimed by prosecutors to “incite hatred” and “denigrate human dignity.” In December 2012, prosecutors in St Petersburg launched an investigation into an exhibition by British artists Jake and Dinos Chapman after visitors complained it was “blasphemous” and “extremist” for featuring images of a crucified Ronald McDonald and Nazi symbolism.
This article was originally published on 20 Aug, 2013 at indexoncensorship.org. Index on Censorship: The voice of free expression
19 Aug 2013 | Digital Freedom, France, News and features, Politics and Society, Religion and Culture
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Freedom of expression is generally protected in France, although is limited by strict defamation and privacy laws. Several laws have passed since 1972 that have further restricted this fundamental right.
In addition to strict privacy laws, France’s libel laws make it easy to sue for defamation. Losing a libel case against a public official carries a higher fine (€45,000) than libel against a private individual (€12,000), which chills public interest criticism of politicians and government officials.
France has some of the toughest hate speech laws in the EU. The number of legal actions for hate speech have multiplied after the 1881 Law on Press Freedom was amended to introduce the offence of inciting racial hatred, discrimination, violence, or contesting the existence of crimes against humanity, which has been very broadly interpreted as the right not to be offended or criticised. Some civil society groups have even managed to force the cancellation of public debates in order to prevent potentially libellous or racist remarks[1].
Since 2004, wearing signs or clothing that overtly manifest a religious affiliation is prohibited in schools[2]. In 2011, France implemented a ban on the niqab or face veil in public places. In September 2011, Paris passed a ban on Muslim street prayers, restricting the right to religious expression.
Media Freedom
France’s media is generally regarded as free and represents a wide range of political opinion. Still, it faces economic, social and political challenges in particular from the security services and from the country’s stringent privacy laws.
Since 2009, France’s president has appointed the executives in charge of its public broadcasting outlets. This controversial measure was heavily criticised since, as it was seen as politicising public broadcasting and put into question its executives’ independence President Francois Hollande has promised to relinquish this privilege. He has also promised to review policies related to public broadcasting funding and management.
Another challenge for media freedom in France has been state intervention to prevent the exposure of corruption. According to the Committee to Protect Journalists, former President Nicolas Sarkozy used the security services to identify the sources of leaks around the 2010 Liliane Bettencourt affair. In addition to accessing the phone records of a Le Monde journalist, journalists from major newspapers were also investigated. Not only did the chief of intelligence violate the confidentiality of journalistic sources, but he questioned the journalist’s right to investigate public corruption.
France’s privacy law is often described as the toughest in the world. This is because the publication of private details of someone’s life without their consent is a punishable offence, with limited public interest defences available. Privacy is safeguarded not only by civil law provisions but also by the existence of specific criminal offences which indirectly promote the withholding of information and self-censorship and limit the exposure of political corruption.
Digital Freedom
About 79.6% of the French population is online. Yet, digital freedom is curtailed by anti-terror laws, increased online surveillance and libel laws.
Online surveillance has been extended as a result of a 2011 anti-terror law[3] and Hadopi 2 (the law “promoting the distribution and protection of creative works on the Internet”) which is supposed to reduce illegal file downloading. Hadopi 2 makes it possible for content creators to pay private-sector companies to conduct online surveillance and filtering, creating a precedent for the privatisation of censorship. Another 2011 law requires internet service providers to hand over passwords to authorities if requested. Concerns have been raised over new legislation enabling the authorities to impose filters on the web without a court order and on the impact of new anti-terror laws that allows for the blocking of websites.
The French Press Freedom Law of 1881 – which guarantees freedom of expression for the press – has been amended so that it applies to online publication. It aims to extend the protections for press freedom online but also allows people to take legal action for libellous or hate speech online, including on blogs posts, tweets and Facebook comments. In October 2012, a French court ruled that Twitter should provide the identities of users who tweeted jokes deemed to be offensive to Muslims and Jews. This was after the Union of French Jewish Students threatened to bring the social media giant to court. During the course of the case, French Minister of Justice Christiane Taubira said that it is a punishable offence to make racist or anti-Semitic comments online. There is pressure to reframe the 1881 Law on Press Freedom, which many consider “no longer adapted to new technologies”.
Artistic Freedom
France has a vibrant art scene but one restricted in various ways by hate speech laws and by interference from public authorities.
Racial hatred and other discriminatory and violent language in artistic work with a potentially large audience is criminalised as a “public expression offence”. Many artists have been brought to Court for this offence which lies mainly in Article 24 of the 1881 Law on Press Freedom.[4] This offence is particularly serious since it is punishable by five years’ imprisonment and a €45,000 fine. Government officials, civil society groups, and individuals have repeatedly sued artists for defamation and incitement to violence.
The Code of Intellectual Property protects artistic works whatever their content and merit, and protects their authors. However, artistic freedom of expression can be restricted by various authorities – Ministry of Culture, Superior Council of Audio-visual (Conseil supérieur de l’audiovisuel, CSA) – whose decisions may limit not only the dissemination of works, but also their production (TV, films).The CSA for example, whose members are political appointments, is regularly exposed to pressure from the public, elected officials, or political authorities to censor artistic works.
[1] Loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics [Law of 15 March 2004, forbidding signs and clothing showing religious affiliation such as headscarves, Jewish skullcaps and oversized Christian crosses in public primary, secondary and higher education]
[2] Loi n° 2011-267 du 14 mars 2011 d’orientation et de programmation pour la performance de la sécurité intérieure [Law of 14 March 2011 on guidance and planning for the performance of domestic security]
[3] Décret n° 2011-219 du 25 février 2011 relatif à la conservation et à la communication des données permettant d’identifier toute personne ayant contribué à la création d’un contenu en ligne [Decree of 25 February 2011 on the conservation and communication of data to identify any person who contributed to the creation of online content]
[4] Loi du 29 juillet 1881 sur la liberté de la presse, Version consolidée au 23 décembre 2012 [Law of 29 July 1881 on Press Freedom]
This article was originally published on 19 Aug, 2013 at indexoncensorship.org. Index on Censorship: The voice of free expression
15 Aug 2013 | Digital Freedom, Index Reports, Italy, News and features, Politics and Society, Religion and Culture
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The situation for freedom of expression in Italy is curtailed by a lack of media plurality, restrictive media legislation and a digital sphere restricted by a strict privacy law. The new parliament is challenging the overt politicisation of the media, yet much needs to be done before Italy meets its international obligations to protect freedom of expression.
Freedom of expression is guaranteed through Article 21 of the Italian constitution. However, civil and political rights have been in decline in recent years due to corruption and restrictions on civil society. Restrictive NGO legislation has curtailed the space for Italian civil society with NGO status only given to organisations recognised by the Foreign Affairs Department under Law 49/1987 and an overdependence on public funding that has been described as ‘a burden and a limitation for Italian NGOs’. A Council of Europe expert council also highlighted the government’s ability to temporarily suspend NGOs for a broad range of offenses. This has reduced Italian citizens’ right to freedom of association and expression.
Italy’s defamation laws although low-cost contain archaic provisions: defamation is still a criminal offence and there are special protections for politicians. Italian law contains provisions penalising insult to the Republic, constitutional institutions, the armed forces and the Italian nation, which should be repealed. To ‘offend the honour’ of the President (and the Pope) is also a criminal offence, with a recent conviction. Italian law criminalises offenses that are motivated by racial, ethnic, national, or religious bias, but excludes gender or sexual orientation. This inconsistency in hate speech provisions has been criticised as discriminatory, while the law itself is overly broad and may chill freedom of expression.
Media freedom
Italy is amongst the lowest ranked of EU member states in media freedom indices.
The limited media plurality in Italy is the most significant restriction on media freedom. Italian broadcasting has long been dominated by a powerful duopoly between private owner Mediaset and public owner RAI (Radiotelevisione Italiana), a situation the Council of Europe has dubbed the ‘Italian anomaly’. Despite attempts to reform the state of the media through the Gasparri and Frattini Laws of 2004, there are no restrictions on direct media ownership by political actors, and there are no requirements for media to be politically independent. AgCom also found that in Italy the two largest TV stations received over 79% of total TV advertising spend.
A study undertaken in 2012 for Italian Regulator AgCom found television plurality is limited compared to radio and newspaper markets. The most concentrated market was online. The low newspaper readership (only 20% of the population) and the lack of online news media in comparison with other G8 states compounds the TV monopoly and the lack of plurality.
A number of laws constitute big challenges to press freedom in Italy. On 10 June 2010, the Italian Senate passed a controversial wiretap law on electronic surveillance. The bill had the potential to severely restrict pre-trial reporting, as it could hinder the publishing of documents related to court proceedings or investigations before the start of a trial with the possibility for fines of up to €450,000. In protest, TV and internet journalists staged a news blackout strike in July 2010 and Wikipedia disabled its Italian website.
There have also been reports of individual reporters being targeted. On February 2011, police searched the apartment of Il Giornale journalist Anna Maria Greco, who had written an article on a Milan prosecutor. In August 2012 Orfeo Donatini and Tiziano Marson, of newspaper Alto Adige were sentenced to four months in prison and fined 15,000 Euros for libel, for alleging that local politician Sven Knoll had taken part in a neo-Nazi summit, despite the fact that the story was based on a police report.
Digital freedom
Italians have generally been slower to embrace new technology and the internet than comparable European countries, with the latest figures putting internet penetration at 56.80%.
The country has laws and practises on data retention and surveillance, which pose a threat to privacy and freedom of expression. There have been instances where the police have practised surveillance on entire internet service providers (ISPs). In 2005, an Italian collective ISP Austistici/Inventati who host a wide range of civil society organisations discovered a police backdoor to their server that compromised their client’s privacy.
In 2010, three Google executives were convicted of violating Italian privacy laws. It was a watershed case – the first to hold Google staff directly responsible to for content posted on their system setting a negative precedent for internet intermediaries. Watchdog groups raised concerns that if third parties, like internet service providers and search engines can be prosecuted based on content they have not authored it could make them more likely to censor, block and take down content. This could have a chilling effect in freedom of expression online.
Italy also has some of the world’s strictest legislation on copyright, in particular file sharing. The Urbani law passed in May 2004 and included possible sentences of up to three years in prison or fines of some 200,000 Euros for breach of copyright.
The latest Google transparency report (July-December 2012) stated that Italy made 111 takedown requests in total, below comparable countries such as the UK and France, while the latest Twitter report (July 2012) stated that Italy made less than 10 user information requests.
Arts
Italy has a vibrant artistic scene, and freedom of expression in the arts is protected in the constitution. However artistic freedom has been chilled by a number of prosecutions for satirical comment and anti-religious art that has impacted on free expression.
Catholicism is no longer the official religion of Italy, but religious sensitivities remain that chill free speech. In 2008, comedian Sabina Guzzanti was charged with insulting the pope, after making jokes about him at a left-wing political rally. Political satire is also chilled. Silvio Berlusconi had also previously threatened the comedienne with a €20million lawsuit after she mocked him during her TV show on RAI. The show was cancelled after two episodes.
In 2001, another comedian Daniele Luttazzi stated in an interview in with journalist Marco Travaglio that “you are a free man in a shitty country”, referring to Italy and the institutions that govern it. For this he was sacked by RAI, and sued for “insult to the Nation”, under article 291 of the criminal code. He was acquitted in October 2002, but he was never re-employed by RAI.
This article was originally published on 15 Aug 2013 at indexoncensorship.org. Index on Censorship: The voice of free expression
