16 Jan 2015 | Europe and Central Asia, Guest Post, News and features
World leaders march in Paris following the recent attacks in France (Photo: European Council)
Jacob Mchangama is the founder and executive director of Justitia, a Copenhagen-based think tank focusing on human rights and the rule of law. He has written and commented on human rights in international media including Foreign Policy, Foreign Affairs, The Economist, BBC World, Wall Street Journal Europe, MSNBC, and The Times. He has written and narrated the short documentary film “Collision! Free Speech and Religion”. He tweets @jmchangama
The brutal attack against Charlie Hebdo has seen European leaders rally round the fundamental value of freedom of expression.
French President Francois Hollande led the way by stating: “Today it is the Republic as a whole that has been attacked. The Republic equals freedom of expression.” Prime Minister David Cameron vowed that Britain will “never give up” the values of freedom of speech, and German Chancellor Angela Merkel called the events in Paris “an attack on freedom of expression and the press — a key component of our free democratic culture.” European Union President Donald Tusk stressed that “the European Union stands side by side with France after this terrible act. It is a brutal attack against our fundamental values, against freedom of expression which is a pillar of our democracy.”
This unified commitment to freedom of expression is both admirable and crucial in the aftermath of the killing of cartoonists armed with nothing more than ink, humour and courage. It is also true that freedom of expression is a fundamental European value and that (Western) Europe allows for a much freer debate than most other places in the world. However, European governments and institutions have long compromised this freedom through statements and laws that narrow the limits on permissible speech. Ironically some of these statements and laws target the very kind of offence that Charlie Hebdo excelled in.
Donald Tusk’s principled defence of freedom of expression stands in stark contrast to a 2012 joint statement issued by then EU High Representative for Foreign Affairs Catherine Ashton, as well as the Organisation of Islamic Cooperation and the Arab League that “condemn[ed] any advocacy of religious hatred … While fully recognising freedom of expression, we believe in the importance of respecting all prophets”. The statement followed the furore over the crude anti-Islamic film “The Innocence of Muslims”, and suggests that mocking prophets is tantamount to religious hatred prohibited under international human rights law and thus exempted from the protection of freedom of expression.
The controversy over The Innocence of Muslims prompted none other than Charlie Hebdo to print its own depictions of Mohammed, including one showing Islam’s prophet naked. That decision drew stern condemnations from the French government. Then Foreign Minister Laurent Fabius remarked that “in the present context, given this absurd video that has been aired, strong emotions have been awakened in many Muslim countries. Is it really sensible or intelligent to pour oil on the fire?”
While Charlie Hebdo has won a number of lawsuits other French figures have been convicted or censored under French law. Last year comedian Dieudonné M’bala M’bala was banned from performing his comedy shows publicly, due to their anti-semitic content. And France is not alone. Swedish shock artist Dan Park was sentenced to six months imprisonment in 2014, over a number of purportedly racist posters deemed “gratuitously offensive” to minority groups by a Swedish court. The owner of the gallery that had displayed the cartoons was also convicted and the posters ordered destroyed.
In 2011, a prominent Austrian Islam-critic was convicted of “denigration of religious beliefs” for stating that the prophet Mohammed “had a thing for little girls”. An elderly Austrian man was found guilty of the same offence for yodelling while his Muslim neighbour was praying. In the United Kingdom, an atheist who left caricatures of the Pope, Mohammed and Jesus in a prayer room in John Lennon Airport was similarly convicted and sentenced to six months imprisonment, though the sentence was suspended. A TV personality’s disparaging social media comments about Scotland and Scots recently prompted Scottish police to tweet that it would “thoroughly investigate any reports of offensive or criminal behaviour online and anyone found to be responsible will be robustly dealt with”.
France and numerous other European countries also have bans against Holocaust denial. In 2010, a Muslim group claiming to expose free speech double standards in the aftermath of the Danish cartoon controversy was convicted after publishing a cartoon suggesting that Jews have made up the Holocaust.
When it comes to countering terrorism, European states increasingly target not only expression that incites terrorism but also expression that may constitute “glorification”. Exactly a week after the attack against Charlie Hebdo, Dieudonné once again ran afoul of the law and was detained over a Facebook post. According to Le Monde at least 50 other cases of terror apology have been opened against people in France since the attack. In Denmark, a number of Islamists have been prosecuted for glorifying terrorism following Facebook postings that seemingly approved of terrorism, including the assault on Charlie Hebdo. Recently British Home Secretary Theresa May unveiled plans that would ban “non-violent extremists” from using television and social media to spread their ideology.
While Europe has a sophisticated and elaborate regional system for the protection of human rights, these institutions have frequently sided with the censors over citizens. In 2008 the EU adopted a framework decision obliging all member states to criminalise certain forms of hate speech. The European Court of Human Rights has found the confiscation of a “blasphemous” film, the conviction of a French cartoonist mocking the victims of 9/11, and the banning of religious fundamentalist group Hizb-ut-Tahrir compatible with freedom of expression. The Council of Europe’s current High Commissioner for Human Rights Nils Muižnieks, has called for all 47 member states to enact bans against Holocaust denial and gender based hate speech.
These non-exhaustive examples demonstrate that contemporary Europe’s approach to freedom of expression is far more complicated and far less principled than the statements made by its leading politicians in recent days suggest. It is an approach to freedom of expression based on the premise that social peace in increasingly multicultural societies requires restrictions on freedom of expression in order to avoid offending ethnic and religious groups. Thus in 2004, when Dutch film maker Theo Van Gogh was murdered by an Islamist offended by Van Gogh’s controversial and anti-Islamic film “Submission”, the Dutch minister of justice proposed to revive the country’s blasphemy law which had been disused since 1968. He argued that “if opinions have a potentially damaging effect on society, the government must act … It is not about religion specifically, but any harmful comments in general.”
Such sentiments might appeal to pragmatists in the wake of the tragedy in France. But there is little reason to think that restricting freedom of expression fosters tolerance and social cohesion across a Europe increasingly divided along ethnic and religious lines, and where anti-semitism and other forms of intolerance is on the rise. In fact such laws seem to fuel the feeling of separateness of modern Europe by legally protecting group identities against offence rather than fostering an identity rooted in common citizenship. While minorities may be offended by disparaging comments, insisting that freedom of expression be limited to protect them from racism and offence, is a very dangerous game at a time where far-right movements with questionable commitment to liberal democracy are on the rise. In this context it should not be forgotten that Dutch politician Geert Wilders once proposed banning the Quran and that the leader of Front National Marine Le Pen wants to ban religious head wear, including the Jewish kippah. The freedoms that (sometimes) allow bigots to bait minorities are also the very freedoms that allow Muslims and Jews to practice their faiths freely. By further eroding these freedoms, no one is more than a political majority away from being the target rather than the beneficiary of laws against hatred and offence. Only by reaffirming a genuine and principled defence of freedom of thought, expression and religion can Europe hope to create a society built on real tolerance and respect for diversity, and where cartoonists neither have to fear gunmen nor jail, but only the moral judgment of their fellow citizens.
This guest post was published on 16 January 2015 at indexoncensorship.org
25 Sep 2014 | Azerbaijan, Azerbaijan News, News and features
Rasul Jafarov, Arif Yunus and Leyla Yunus (Photos: Rasul Jafarov (© IRFS), Arif and Leyla Yunus (© HRHN))
Disregarding the motion by European Parliament earlier this week, Azerbaijan has failed to release political prisoners Leyla and Arif Yunus, Rasul Jafarov, Intigam Aliyev and Hasan Huseynli.
Leyla and her husband have now been imprisoned for 56 days, since July 30. On September 22, Leyla’s lawyers questioned her current condition after not being allowed into her cell and being denied an opportunity to speak with her on the phone. Guards told the lawyers she was sick and refused to speak with them. In a joint statement the lawyers expressed that the circumstances Leyla is being exposed to in the prison, including being subjected to acts of violence, “raise a lot of concerns”.
Jafarov, now detained for 53 days, since August 2, wrote an appeal earlier this week in which he asserted that he was falsely accused of hiding evidence and not cooperating in the investigation, and that his imprisonment is a result of a government order. “I present my arguments regarding the baselessness of the attribution of each ground to me and the fact that there was a ‘political order,’”he wrote.
Intigam Aliyev has been imprisoned for 47 days, since August 8. Hasan Huseynli, who has been detained for 178 days, since March 30, was recently sentenced to six years in Azerbaijani prison.
These five and 93 other political prisoners held in Azerbaijan were the subject of last week’s Platform London protest outside of BP’s headquarters on September 17. The protest called for BP to end its funding of the authoritarian regime on the anniversary of “the Contract of the Century”. A letter was also given BP, requesting they call on the Aliyev regime to release the 98 political prisoners and that they end their sponsorship of the 2015 Baku European Olympic Games. BP verbally agreed to meet with Platform, but has yet to formally respond to the letter.
This article was posted on 25 September 2014 at indexoncensorship.org
30 Jul 2014 | Europe and Central Asia, European Union, News and features, United Kingdom
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”.
This article was posted on July 30, 2014 at indexoncensorship.org
2 Jun 2014 | Digital Freedom, European Union, News and features
On May 13, the Court of Justice of the European Union (CJEU) held in Google Spain v AEPD and Mario Costeja González that there was a “right to be forgotten” in the context of data processing on internet search engines. The case had been brought by a Spanish man, Mario Gonzáles, after his failure to remove an auction notice of his repossessed home from 1998, available on La Vanguardia, a widely-read newspaper website in Catalonia.
The CJEU considered the application of various sections of Article 14 of EU Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 covering the processing of personal data and the free movement of such data.
A very specific philosophy underlines the directive. For one, it is the belief that data systems are human productions, created by humans for humans. In the preamble to Article 1 of Directive 95/46, “data processing systems are designed to serve man; … they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms notably the right to privacy, and contribute to … the well-being of individuals.”
Google Spain and Google Inc.’s argument was that such search engines “cannot be regarded as processing the data which appear on third parties’ web pages displayed in the list of search results”. The information is processed without “effecting the selection between personal data and other information.” Gonzáles, and several governments, disagreed, arguing that the search engine was the “controller” regarding data processing. The Court accepted the argument.
Attempts to distinguish the entities (Google Inc. and Google Spain) also failed. Google Inc. might well have operated in a third state, but Google Spain operated in a Member State. To exonerate the former would render Directive 95/46 toothless.
The other side of the coin, and one Google is wanting to stress, is that such a ruling is a gift to the forces of oppression. A statement from a Google spokesman noted how, “The court’s ruling requires Google to make difficult judgments about an individual’s right to be forgotten and the public’s right to know.”
Google’s Larry Page seemingly confuses the necessity of privacy with the transparency (or opacity) of power. “It will be used by other governments that aren’t as forward and progressive as Europe to do bad things. Other people are going to pile on, probably… for reasons most Europeans would find negative.” Such a view ignores that individuals, not governments, have the right to be forgotten. His pertinent point lies in how that right might well be interpreted, be it by companies or supervisory authorities. That remains the vast fly in the ointment.
Despite his evident frustrations, Page admitted that Google had misread the EU smoke signals, having been less involved in matters of privacy, and more committed to a near dogmatic stance on total, uninhibited transparency. “That’s one of the things we’ve taken from this, that we’re starting the process of really going an talking to people.”
A sense of proportion is needed here. The impetus on the part of powerful agencies or entities to make data available is greater in the name of transparency than private individuals who prefer to leave few traces to inquisitive searchers. Much of this lies in the entrusting of power – those who hold it should be visible; those who have none are entitled to be invisible. This invariably comes with its implications for the information-hungry generation that Google has tapped into.
The critics, including those charged with advising Google on how best to implement the EU Court ruling, have worries about the routes of accessibility. Information ethics theorist Luciano Floridi, one such specially charged advisor, argues that the decision spells the end of freely available information. The decision “raised the bar so high that the old rules of Internet no longer apply.”
For Floridi, the EU Court ruling might actually allow companies to determine the nature of what is accessible. “People would be screaming if a powerful company suddenly decided what information could be seen by what people, when and where.” Private companies, in other words, had to be the judges of the public interest, an unduly broad vesting of power. The result, for Floridi, will be a proliferation of “reputation management companies” engaged in targeting compromising information.
Specialist on data law, Christopher Kuner, suggests that the Court has shown a lack of concern for the territorial application, and implications, of the judgment. It “fails to take into account the global nature of the internet.” Wikipedia’s founder, Jimmy Wales, also on Google’s advisory board, has fears that Wikipedia articles are set for the censor’s modifying chop. “When will a European court demand that Wikipedia censor an article with truthful information because an individual doesn’t like it?”
The Court was by no means oblivious to these concerns. A “fair balance should be sought in particular between that interest [in having access to information] and the data subject’s fundamental rights under Articles 7 [covering no punishment without law] and 8 [covering privacy] of the Charter.” Whether there could be a justifiable infringement of the data subject’s right to private information would depend on the public interest in accessing that information, and “the role played by the data subject in private life.”
To that end, Google’s service of removal is only available to European citizens. Its completeness remains to be tested. Applicants are entitled to seek removal for such grounds as material that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.”
An explanation must accompany the application, including digital copies of photo identification, indicating that ever delicate dance between free access and anonymity. For Google, as if it were an unusual illness, one has to justify the assertion of anonymity and invisibility on the world’s most powerful search engine.
Others have showed far more enthusiasm. Google’s implemented program received 12,000 submissions in its first day, with about 1,500 coming from the UK alone. Floridi may well be right – the age of open access is over. The question on who limits that access to information in the context of a search, and what it produces, continues to loom large. The right to know jousts with the entitlement to be invisible.
This article was published on June 2, 2014 at indexoncensorship.org
Both Google and the European Union are funders of Index on Censorship
