You can find support for the public’s right to access official information in the strangest places. Like a private EU policy paper draft. As leaked to and published by the whistle-blowers’ website Wikileaks.
The European Union’s Guidelines on Freedom of Expression Online & Offline started with NGO consultations, but the EU’s top working group on human rights (COHOM) wanted the final drafting work done behind closed doors. Wikileaks thought different and released a leaked draft last month.
Designed to set Europe’s agenda for freedom of expression and media rights, the original draft as leaked promised an EU commitment to the right of access to official information of all kinds. But you won’t find the pledge in the final version, as released by the EU in Brussels last week. It’s been cut.
Not one of the nine new priority areas for EU legislation listed in the final version guidelines supports the adoption of right to information legislation. The document also excludes promotion of access to information rights from its list of “Priority Areas of Action”.
The key deleted reference, Paragraph 14 in the version published by Wikileaks, summarised the principle as the “general right of the public to have access to information of public interest, the right of the media to access information and the right of individuals to request and receive information concerning themselves that may affect their individual rights”. These lines were cut in their entirety.
The original text was in line with an emerging European political and legal consensus that the right to receive official information implies that a state has a positive obligation to make that information available to them. The guidelines have been firmly steered in the opposite direction.
In London, experts blame their own government for setting a bad example. The UK government argues that citizens have the freedom, but not the right, to seek and receive information. On that basis it rejects the idea that there is a positive obligation on its officials to make information available to citizens, only that they should have a good reason for not doing so.
“I’d say that the UK government continues to deny that there is a right to information in any form,” says David Banisar of the free expression rights advocacy group Article 19. What’s changed, he says, is that UK courts are beginning to interpret UK common law in the same way as the European Court in favour of the general principle of a right to request and receive official information.
This threatens the legality of the UK’s habit of giving certain officials immunity from Freedom of Information Act requests under UK common law, even where this is incompatible with European law, as the UK Court of Appeal concluded last month, finding that Attorney General Dominic Grieve acted unlawfully by denying public access to Prince Charles’ official letters to government ministers.
In a similar but separate case Times journalist Dominic Kennedy appealed to the courts when the Charity Commission, the agency that monitors charities in the UK, refused his request under the country’s Freedom of Information Act to see paperwork from its inquiry into the management of maverick politician George Galloway’s Mariam Appeal for Iraq. Last month, after seven years’ deliberations, the courts cleared the way for the Commission to hand over the papers – though they have yet to do so, and it may still take a judicial review to make them.
The ruling in favour of the Times in March came with a similar string of citations from European Court (ECHR) cases that are comfortably in line with this new direction for UK common law. “You can ask for information from a public authority just because it is a public authority and it should act in the public benefit.” Kennedy told the UK Press Gazette after his win.
Kennedy’s lawyer Rupert Earle of Bates Wells Braithwaite says that while the ECHR rulings clearly favour openness, the court’s principal chamber has yet to definitively state that public bodies have a default obligation to provide information, subject to the usual provisos on privacy and security. It was, he thought, only a matter of time before it did though.
But even if the ECHR isn’t yet definitive on the issue and the UK courts take their own line, it isn’t a reason to block efforts to mainstream access to information rights in EU free expression policy.
A number of free expression rights groups have expressed dismay. Most were initially consulted on the paper before the EU took drafting behind closed doors. They say the guidelines as they stand not only fail to recognise the right to access to official information, but also that this right is a key element of freedom of expression rights – seriously undermining the guidelines’ effectiveness.
They are calling on the EU to reconsider the guidelines and address these concerns. “We do not believe the (Guidelines on Freedom of Expression Online & Offline) are complete without a clear reference to the right to information and a commitment to priority action in this area,” said the groups in a letter signed May 21, 2014 by nine groups, including Index on Censorship.
The only reason why we know the EU has cut support for reducing official secrecy is thanks to Wikileaks. That irony alone suggests that there should be a few more gates in the wall surrounding the EU’s secret garden of information.
Citizens who wanted more information from their government, the courts and the scores of quangos that influence our lives, would have benefited had the EU guidelines been allowed to recognise the principle that the right to information should be the default start point, limited only when prescribed by law and “necessary and proportionate” to a legitimate aim. The EU needs to put things right.
On 12 May 2014, the Council of the European Union adopted the EU Human Rights Guidelines on Freedom of Expression: Online and Offline (Guidelines). The initiative to adopt the Guidelines, which provide “political and operational guidance” to EU staff regarding this important area of EU foreign policy and assistance, is welcome.
At the same time, there are certain problems from the perspective of freedom of expression in the Guidelines. It is, in particular, very problematical that the Guidelines fail to recognise the right of the public to access information held by public authorities as an element of the right to freedom expression and as an operational priority for the EU.
This omission seriously undermines the effectiveness of the Guidelines. The right to access information held by public bodies, or the right to information, has been recognised unequivocally at the international and European level, including by the United Nations Human Rights Committee and the European Court of Human Rights, as well as by regional human rights bodies including the African Union and the Organisation of American States. It is not clear why such an important aspect of the right to freedom of expression – an area in which the EU has been active – should have been entirely left out of the Guidelines.
Paragraph 14 of the Guidelines recognise that, in certain circumstances, human rights outcomes may “be assisted” by the disclosure of information held by the State and that this “can serve to promote justice and reparation”, but they fall short of recognising a right to information. The Guidelines also largely fail to recognise promotion of the right to information as a priority area for action, although paragraph 32 does call for support for the adoption of freedom of information laws.
A further concern is that a document of this importance should have been the subject of an open and meaningful process of consultation before it was finalised. Instead, only limited and essentially internal consultations took place. While internal consultations are an appropriate part of the process, the Guidelines should have been the subject of an open public consultation before being adopted in a final version. At a minimum, this would require a formal draft version of the Guidelines to be posted online, with an opportunity for stakeholders to provide comments.
We do not believe the Guidelines are complete without a clear reference to the right to information and a strong commitment to priority action in this area. We therefore call on the relevant EU actors to reconsider the Guidelines with a view to addressing these concerns. Alternatively, we call on the EU to adopt a dedicated set of guidelines on the promotion of the right to information as an element of freedom of expression.
Centre for Law and Democracy
European Federation of Journalists
Free Press Unlimited
Global Forum for Media Development
Index on Censorship
International Media Support
Internews – Europe
For further information please contact:
Global Form for Media Development
Email: [email protected]
Mob: +32 477 18 56 01
Office: + 32 2 720 26 00
Skype ID: coordinator.gfmd
Centre for Law and Democracy [email protected]
+1 902 997-1296
+1 902 431-3688
Skype ID: toby-mendel
As the European Commission opens a consultation on its planned freedom of expression guidelines, Index on Censorship is publishing a public note setting out what it sees as the key principles that must underpin such guidelines.
The EU plans to use these guidelines to assess, in its varied relationships with other countries, if freedom of expression is being respected online and off. While the EU has considerable experience in setting standards for freedom of expression offline, it has been less clear until now how it plans to defend free speech online. We hope these guidelines and other initiatives set out in the EU Action Plan on Human Rights and Democracy represent effective steps in the right direction.
These guidelines are a crucial opportunity for the EU to encourage free expression. It is vital that different groups from across civil society input and argue for a full clear defence of free speech online and off.
How the European Union can protect freedom of expression (PDF)
The European Union and its member states have always been committed in theory at least to democratic principles and fundamental human rights. The EU aims to promote human rights both internally and externally, using EU influence in its external policies to push for greater human rights compliance, notably in its enlargement processes, and to a varying degree in other areas (such as neighbourhood policy (to some extent), trade policy (little) and aid policy (to some extent). All member states are signatories to the EU, the European Convention on Human Rights and the Universal Declaration of Human Rights, which protect freedom of expression; the EU’s own Charter of Fundamental Rights is now part of the EU’s Lisbon Treaty. However, the range of cases at the European Court of Human Rights in Strasbourg tells us that the EU member states need to look at their own rights performance as well as to push for human rights internationally.
The EU Action Plan on Human Rights and Democracy published in June 2012 calls for the EU to develop new public guidelines on freedom of expression online and off. This paper outlines key global issues and principles on free expression that Index believes the EU should consider as essential when it drafts these guidelines.
(1) Protecting freedom of expression in a digital age
There are a number of key issues the EU must consider to ensure the protection and promotion of digital freedom of expression in its foreign policies.
1.1 Internet governance
Establishing a global body exercising top-down control of the internet would risk increased suppression of speech, severely erode openness and inhibit innovation and creativity. Index believes the European Union should defend a bottom-up, multi-stakeholder approach to internet governance to ensure an open and free internet is defended, and we welcome recent calls in the European Parliament for the Union to defend this freedom.
1.2 State censorship
Authoritarian states continue to be active in online censorship, from China’s Great Firewall to Iran’s plans for a “halal internet”. States should not institute network-wide filters or firewalls that create national intranets. The excessive and inappropriate use of takedown requests by governments can also have a negative impact on online debate, on social media, comment threads and beyond. Index believes that, in parallel with free speech offline, any limits made on online speech must be necessary, limited, transparent and proportionate, and takedown requests should always be backed with a court order.
1.3 Corporate censorship
Private companies face the challenge of expanding internationally while obeying national laws and respecting fundamental human rights. Meanwhile, companies such as Facebook, Twitter and Google are playing a greater role in delineating the boundaries of ‘acceptable’ speech through their own terms of service. National-level libel and privacy laws often make internet intermediaries, who are not the authors or publishers of content, judge and jury over censoring content. Index believes intermediaries should not be liable for content they have not authored. In addition, national laws must not disproportionately impact upon freedom of expression, and private companies should fully respect their human rights obligations in their operations around the world.
1.4 Criminalising online speech
Increased capability to share content online means that messages some groups might find offensive can spread quickly to large audiences. Online speech deemed “offensive” is increasingly being criminalised, especially on social media platforms. This trend must be reversed. Efforts to restrict speech based on perceived offense must be narrow and limited, as outlined in the UDHR. Public prosecutors should not criminalise content based solely on real or perceived offense.
1.5 Net neutrality
Net neutrality – the principle that all data should be treated equally on networks – is an essential prerequisite for a free and open internet. Net neutrality should be written into statute. The European Parliament’s Draft Report on a Digital Freedom Strategy in EU Foreign Policy called on both the Commission and Council to codify the principle of net neutrality in appropriate regulation, “so as to strengthen its credibility in terms of promoting and defending digital freedoms around the world.” Index echoes this call.
1.6 Surveillance and privacy
Mass monitoring, surveillance and the unnecessary storage (with state access) of citizens’ use of digital communications are unacceptable breaches of fundamental human rights. The right to privacy and freedom of expression are closely linked: if individuals’ communications are monitored, that will directly chill their free expression and encourage self-censorship. Governments should not store unnecessary amounts of their citizens’ communications data. Government access to data should be limited in scope with as few bodies able to access the data as strictly necessary; transparent, subject to judicial oversight and legally defined.
A related threat is the role western technology companies are playing in producing and exporting surveillance equipment that allows governments to retain data and spy on citizens. Index welcomes the European Parliament’s recent endorsement of stricter European export controls of such “digital arms”, as proposed by Marietje Schaake, and urges the EU to follow this lead.
Attempts to enforce traditional copyright models in the digital world risk criminalising and censoring individual users. Copyright laws should not be used to block individuals’ access to the internet. There is a need for an open debate that looks at new business models that work for both creators and users.
1.8 Access to free expression online
The latest statistics suggest 63 per cent of Europe’s population is online. As the digital world becomes an increasingly key part of social, economic and political life, access to digital communications is fundamental. The digital divide needs to be further overcome in the EU and around the world. Online censorship should not close down these spaces, and nor should other obstacles to free expression online be allowed to persist, including illiteracy, marginalisation and poverty, or discrimination by gender or by ethnicity.
1.9 Support for human rights defenders and citizen journalists
The technological innovations that have transformed the work of activists have also facilitated attacks on bloggers who push back against established networks of control. Index contends that online and citizen journalists must be given the same protection as mainstream and offline media organisations.
(2) Protecting free expression offline
2.1 Media freedom
In any democracy, citizens must be free to challenge authority. Restrictive legislation, over-regulation and a lack of plurality diminishes the media’s ability to act as a public watchdog holding power to account. Media freedom in recent years has been restricted by anti-terrorism laws, classified government documents, secrecy laws and corporate bullying of the media. Restrictions on laws that govern the press must be transparent, limited and proportionate; anti-terrorism legislation must not reduce the fundamental principle of confidentially of sources, which makes investigative journalism possible; state secrecy laws should contain a public interest defence; and commercial privacy should be limited when corporate malfeasance needs exposing in the public interest.
2.2 Media regulation
Statutory regulation of print media is inappropriate bringing politicians too close to interference in newspapers’ editorial freedom. Independent or self-regulatory regulatory bodies are the appropriate routed alongside high media standards and ethics. Where there is limited media capacity (such as terrestrial television and radio), state licensing can be justified as long as it is not used to silence critical voices. States should encourage media plurality and not limit competition but intervene to prevent media monopolies.
Archaic libel laws chill freedom of expression in too many countries around the world. The most significant chill comes from the use of criminal defamation to imprison those who criticise government officials or politicians. The use of criminal defamation laws is unjust and disproportionate, and countries should decriminalise libel in line with the recommendations of the UN special rapporteur on freedom of expression.
Civil defamation laws can also chill freedom of expression. Civil defamation laws must not give rise to excessive costs or damages and have adequate defences to protect the public interest, truth and fair comment.
2.4 Balancing privacy and freedom of expression
Freedom of expression and privacy are often complementary as human rights. Free speech can be chilled if individuals fear speaking out on controversial issues because they are being watched or listened too. Privacy and anonymity are important in protecting free expression in many circumstances. At the same time, the right to privacy and the right to free expression can sometimes come into conflict: investigative journalism exposing corruption, wrong-doing, abuse of power etc, must have accessible public interest defences that allows in such circumstances some invasion of privacy that would otherwise be deemed inappropriate.
2.5 Hate speech, offence and religious freedom
Hate speech and incitement to violence are increasingly confused with offence and blasphemy. There should be a very high threshold for prosecuting hate speech. Open debate can be an effective response to intolerance.
Blasphemy laws should be repealed, in particular criminal blasphemy laws that have a significant impact on religious minorities. With the expansion of the internet, content that some religious believers find blasphemous is increasingly available. Blasphemous or offensive content is neither an incitement to violence nor a reason to respond with violence. Demands to censor offensive material also present major challenges to online hosts of user-generated content, such as YouTube, Facebook and others. Offensive speech is a subjective concept – one person’s interesting idea is another’s offensive comment – and there is no right not to be offended. Moderated sites can create their own rules as to acceptable content – just as clubs or newspapers or broadcasters do, as editorial choices – but free speech means tolerating views you do not like or find offensive.
2.6 Freedom of information
Freedom of information law is an essential component of the right to freedom of expression. Countries should have freedom of information laws that prevent the over-classification of information, reduce secrecy, have a right to appeal where governments refuse information and are low-cost for citizens to use.
2.7 Freedom of assembly
Increasingly governments have introduced fines to prevent legitimate protest without licenses or permits (that are often refused). It has become a method to reduce visible, public freedom of expression. Freedom of assembly is a human right that should only be restricted in very limited circumstances for instance the protection of other human rights.