The British House of Lords has slammed the recent “right to be forgotten” ruling by the court of justice of the European Union, deeming it “unworkable” and “wrong in principle”.
The Lords’ Home Affairs, Health and Education EU Sub-Committee stated in a report on the ruling, published Wednesday, that: “It ignores the effect on smaller search engines which, unlike Google, may not have the resources to consider individually large numbers of requests for the deletion of links.”
The committee added that: “It is wrong in principle to leave to search engines the task of deciding many thousands of individual cases against criteria as vague as ‘particular reasons, such as the role played by the data subject in public life’. We emphasise again the likelihood that different search engines would come to different and conflicting conclusions on a request for deletion of links.”
The ruling from May this year forces search engines, like Google, to remove links to articles found to be outdated or irrelevant at the request of individuals, even if the information in them is true and factual and without the original source material being altered. Following this, Google introduced a removal form which received some 70,000 requests within two months.
The Lords committee recommends, among other things, that the “government should persevere in their stated intention of ensuring that the Regulation no longer includes any provision on the lines of the Commission’s ‘right to be forgotten'”.
Index on Censorship has repeatedly spoken out against the ruling, stating that it “violates the fundamental principles of freedom of expression“, is “a retrograde move that misunderstands the role and responsibility of search engines and the wider internet” and “a blunt instrument ruling that opens the door for widespread censorship and the whitewashing of the past”.
Free speech has always been a concern to the EU, with flaws in the world of press freedom and pluralism in Europe still apparent today. In an attempt to raise awareness to these problems, both on an institutional scale and publicly, DG Connect, tasked with undertaking the EU’s Digital Agenda, launched a call for proposal for funding for a new project to allow NGOs and civil society platforms to research and develop tools to tackle this problem.
“It is true that we regularly receive concerns about media freedom and pluralism that come from citizens, NGOs and the European Parliament,” Lorena Boix Alonso, Head of Unit for converging media and content at DG Connect told Index.
The Vice President of the European Commission, Neelie Kroes, began implementing action on this topic in 2011 with the creation of a high level group on media freedom and pluralism, but there are still violations in the world of European media freedom that need to be dealt with. These projects will be useful to raise awareness, according to Boix Alonso, to something which many people have little knowledge on.
Index on Censorship
In 2013, an Index on Censorship report showed that, despite all EU member states’ commitment to free expression, the way these common values were put into practice varied from country to country, with violations regularly occurring.
Building on this report, the DG Connect-funded project will enable Index to implement real-time mapping of violations to media freedom on a website that covers 28 EU countries and five candidate countries. Working with regional correspondents, specialist digital tools will be used to capture reports via web and mobile applications, for which workshop training will be provided. Index led events across Europe will discuss the contemporary challenges currently facing media professionals, allowing them to share good practices, while learning how to use the tools.
“Index believes that free expression is the foundation of a free society. Enabling journalists to report on matters without the threat of censorship or violations against them means promoting the right to freedom of expression and information, which is a fundamental and necessary condition for the promotion and protection of all human rights in a democratic society,” explained Melody Patry, Index on Censorship Senior Advocacy Officer.
The DG Connect grant demonstrates the current focus of the EU on the needs of journalists and citizens who face these violations to media freedom and plurality, according to Patry, as well as longer term challenges in the digital age.
For some, the need to safeguard media freedom is at the forefront of the work they do. The Centre for Media Pluralism and Media Freedom (CMPF) is one such organisation and, in collaboration with the Centre for Media and Communication Studies (CMCS) at the Central European University, will continue to do so with funding from DG Connect for their project Strengthening Journalism in Europe: Tools, Networking, Training.
“The role of journalists is to both serve as guardians of government power and to enable the public to make informed decisions about key social and political issues that affect their daily lives,” the CMPF and CMCS told Index.
“The ability of journalists to freely report on issues without censorship is therefore critical- it’s the cornerstone of the checks and balances that make democracies work.”
The collaborative project will develop legal support, resources and tools for reporters, editors and media outlets to help them defend themselves in cases of legal threat, as well as raising awareness to ongoing violations to free expression and how these “impact the foundation on which democratic systems are based.” NGOs and policy makers will also benefit from this EU-funded scheme.
The International Press Institute
For over 60 years the International Press Institute (IPI) has been defending press freedom around the world, working to improve press legislation, influencing the release of imprisoned journalists and ensuring the media can carry out its work without restrictions.
London may have earned the title over recent years of libel capital of the world but what restrictions are placed on European journalists through defamation laws? This question forms the base of the IPI project, analysing existing laws and practices relating to defamation on both a civil and criminal nature; comparing this to international and European standards; and looking to the extent of which these affect the profession of journalism in all 28 EU countries and five candidate states.
After initial research, workshops will be hosted in four countries where the IPI believes they will have the greatest impact on the ground in countries where press freedom is limited by defamation to teach journalists which defamation laws affect their work, what the legitimate limits to press freedom are and what goes beyond what is internationally accepted.
According to the IPI the EU currently has no strong standards with regards to defamation and the threat to press freedom, a fact the led to their project proposal. “We hope that at one point the work we are doing will lead to a discussion within the EU about the need to develop these standards,” Barbara Trionfi, IPI Press Freedom Manager, explained to Index. “The defence of press freedom is a fight anywhere and it does not stop even in western Europe. It is still a major problem.”
Osservatorio Balcani e Caucaso
“We aim at improving the working conditions of media professionals and citizen journalists in Italy, South-East Europe and Turkey and ultimately at enhancing the quality of democracy,” Francesca Vanoni, Project Manager at Osservatorio Balcani e Caucaso (OBC) told Index.
OBC has been reporting on the socio-political and cultural developments of south-east Europe since 2000 and through their DG Connect funded project will monitor and document media freedom violations in nine countries, including Bulgaria, Croatia, Macedonia, Romania and Serbia.
Offering practical support to threatened journalists, the project will raise public awareness of the European dimension on media freedom and pluralism, stimulating an active role of the EU with regard to media pluralism in both member states and candidate countries. This will be implemented, among other means, through social media campaigns, a crowd-sourcing platform, an international conference for the exchange of best practices and transnational public debates.
The idea behind the project was to help build a European transnational public sphere in order to strengthen the EU itself. The ethics and professionalism of media workers is crucial, according to Vanoni. A democratic environment is built upon the contribution of all parts involved: “The protection of media freedom is fundamental for the European democracy and it cannot be left aside of the main political priorities.
“Being part of a wider political community that tackles shared problems with shared solutions offers stronger protection in case pluralism is threatened,” explained Vanoni.
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.
