Burma: The art of transition

The Art of Transition Symposium took place in Yangon on March 30th – 31st 2013.  It was the first public discussion of artist freedom of expression in Burma, looking in particular at the impact of the wave of political reforms, which started at the end of 2011, on artistic freedom of expression.  Here is a short film directed by artist Htein Lin, who also was artistic advisor to the symposium with comedian and director Zarganar.  The film reports briefly on the Symposium, and gives a snapshot of some of the performances and exhibitions that have taken place in Yangon during the year since the symposium.  The Symposium was co-produced by HOME – Zarganar’s new company HOME (which stands for House of Media and Entertainment) and Index on Censorship.  The Burmese team was led by  journalist and former political prisoner Zaw Thet Htwe.

The Art of Transition Symposium[1] in Yangon was a significant event in the unfolding drive towards democracy in Burma, providing a public platform to discuss how changing political and social conditions are affecting artistic freedoms.  It was the first symposium of its kind in Burmese[2] and another in the series of firsts as the space for expression opens up.  While the abolition of pre-censorship of print media released all writers, including poets and novelists from censorship and ensured that debate around media freedom was centre stage, discussion about broader artistic freedoms was trailing and needed to be considered in depth.

The symposium featured an unprecedented gathering of artists from Yangon and Mandalay facilitating exchange between historical, traditional and contemporary art forms and between artists of all ages.  Many of the most respected artists in the country across all art forms, in particular those traditionally most associated with political and social engagement – poets, cartoonists, comedians, performance artists and film-makers – came together with political leaders, journalists, academics and lawyers for two days of presentations and discussion of the status of artistic freedom of expression and artists was possible.

Political backdrop

The symposium took place against a background of political and social change, optimism, instability, and uncertainty of President Thein Sein’s commitment to reforms[3]. There were two key free speech issues in the headlines. On April 1st, the day after the symposium, four new independent daily newspapers were published in Burma, the first since 1962.  This historic moment for free speech was to an extent undermined by the on-going uncertainty surrounding press laws, which were to go through parliament in June.  The other key freedom of expression issue was the debate around hate-speech triggered by outbreaks of violence between Buddhists and Muslims.

Ko Htut, chairman of the government appointed Press Council and member of Association of Former Political Prisoners, addressed the uncertain future of the press laws and called for the Ministry of Information’s (MoI) draft Printing and Publishing Enterprise Law to be rejected[4] as he saw it risked endorsing the old censor board under a new name.

Violence between Buddhists and Muslims figured strongly; the role played by social media in fuelling the violence was a major topic of discussion in the media at the time and continues to be at the time of writing.  Hate speech and songs with Islamophobic lyrics circulated on the internet were discussed at the symposium and one of the performance pieces explored online hate speech. Emergency talks took place over the same weekend as the symposium which meant that Zarganar, a member of the interfaith council that met to discuss the tensions and violence, was only able to play a relatively small role in the symposium.

Artistic context

The symposium partners – HOME, comedian, film-maker and former political prisoner Zarganar’s new company and Index on Censorship[5] – viewed the symposium as a follow up to the Art of Freedom Film Festival[6] which took place in Yangon in January 2012, screening uncensored films about freedom and the title of the symposium – Art of Transition – was chosen accordingly.  The film festival had given a green flag to the public debate about free expression, in large part due to Zarganar’s call for short films about freedom which elicited nearly two hundred entries, many by first time film-makers.  The film festival, co-produced by Aung San Suu Kyi, was a very high-profile event with thousands of people watching the films on huge screens in the streets and squares of Yangon.  It had clearly had a massive impact on the relationship between artists and the government, especially as ‘Ban That Film’ a fierce satire on film censorship boards, was the winning entry of the short film competition.  The timing was critical and the organisers agreed to move quickly, to capture the conversation at an early stage of transition, making sure debate about freedom of artistic expression is on the agenda alongside media freedoms at this time of rapid reform.

The abolition of pre-censorship in print media is having a knock-on effect across other art forms, with artists taking more risks in terms of their choice of subject matter and putting on unlicensed events, in the belief that there would be less consequence or repercussion.  The symposium, which was a licenced event, was in fact monitored by government officials standing at the back of the hall, though this did not seem to limit the discussion. It could be seen as one of a series of artistic initiatives and projects that are testing and interrogating the new freedoms in Burma during this period of accelerated change.  Other notable events that took place around the time of the symposium were Zarganar’s comedy performance March 27, 2013 was a six hour live broadcast marathon of unbridled satire; Thangyat performances for New Year Celebrations were openly critical of the government; and Padauk 7000 a temporary unlicensed arts space that showed a series of site specific installations from March – June 2013. See Annex for more information on these events.

Symposium Summary

Over the two days of the symposium the presentations and discussions moved from the experiences of surviving the most brutal treatment of political prisoners on Cocos Island, to President Thein Sein administration’s apparent openness to criticism and satire, from the opportunities opening as a result of greater access to the internet to the impact of new independent artist associations and unions.

Many speakers chose to use this public platform to relate past experience of living through years of oppression and working in an environment extremely hostile to artistic freedom. Many spoke openly, some for the first time, about how they continued to create work in spite of considerable personal danger and hardships and described their courageous, ingenuous and often humorous strategies for circumventing censorship.  Another discussion centred around the emergence of public censorship which, as the role of the state censor diminishes appears to fill the void.  Public censorship,  made up of many voices and sensibilities, brings with it a new, some felt more complex debate around freedom and the responsibilities of the artist.

There was a call to test limits and take risks to determine how far state imposed boundaries can be pushed, but at the same time there was concern that people need more time to learn how to exercise these new freedoms, especially in relation to the hate speech proliferating on the internet. The impact on artistic style and content was also discussed, as subjects that were previously banned can now be openly discussed.  Whilst some felt liberated by these changes, others spoke about how they felt a paradoxical constraint generated by the new freedom and that they felt they had lost their bearings.

Artist Htein Lin played an important role in the symposium stimulating further thought and conversation with speakers and the audience about the core questions of the conference.  He stressed that this is a new situation and there is a new reality which requires a new way of thinking and talking about freedom of expression.  He posed questions about what artists should being doing to look after and increase the scope of the right to freedom of expression, pressing artists to think about the role of the police and how to work with new legislation.

Getting past the censors

Censorship is not about not writing a poem but about not being allowed to read it. Moe Saw 

For many the symposium provided a very important opportunity to talk, sometimes for the first time in public, about the suffering and injustices leading up to and after 1988 and their work as artists and activists in underground movements.  In the current climate of rapid change, it was clear that many felt that taking account of the past was an important step towards embracing reform.  The ubiquitous presence of informers had made it impossible to talk about these things even amongst friends. Htet Myak, former political prisoner and survivor from the Cocos Islands one of the military junta’s most notorious prisons described the brutality of life for the 153 political prisoners who were incarcerated there and their efforts to continue to write using any available materials.

There were many accounts of how censorship boards operated before the recent reforms. Editor Chit Win Maung gave examples to illustrate the nature of censorship. One short story featuring  a man who had to pluck out a white hair, using the word “tweezers”  which is “zarganar” in Burmese was banned the comedian Zarganar was black-listed at the time. ‘Ye-nan-thit’ magazine was banned for six months after it published an essay about “democracy”.  Even though the military government has always promised democracy the word could only be used in state-published materials.

Min Htin Ko Ko Gyi’s film ‘Uninterruptedness’ made after the cyclone Nargis, illustrated the lengths that artists would go to, to get work past censors.  Itfeatured layers of text – the front layer being a series of words floating across the screen, over a layer of back to front text from Min Ko Naing’s book ‘Rear View Mirror’ (nauq-kyi-hman), only published in Thailand, banned in Burma, based on his experiences in 1988.

Public Censorship

Min Ko Naing talked about the changing nature of literary talks in villages.  In the past, writers would tour talks about literary classics, often by westerners,  which masked discussion of current affairs and political commentary.  On recent tours he had encountered disbelief that it was now possible to talk openly about politics and he had to negotiate the use of microphones with the villagers, who finding the new openness shocking enough, were reluctant to amplify his presentation, fearing repercussions from the authorities.

Sharaad Kuttan, visiting speaker from Malaysia, spoke about the importance of controversy for generating public debate around challenging art, even if the public may call for the banning of the work in question.  Controversy around art work often means that the artist has struck a nerve and is addressing an issue that is uncomfortable or divisive in society and he stressed the importance of art generating debate.

Expression online:

Because we open the door, some dust comes in. We dont need to be afraid of the dust.” Htun Win Nyein

Blogger Nay Phone Latt spoke of his sense that the country could fall apart at the touch of a key, because of the intensity of hate speech online especially about race and religion.  He said “we are free but not safe”. He had investigated the online hate speech against Muslims and discovered that it was generated by a small group using a fake account.  He suggested that “absolute freedom is not good for us”, we should take responsibility to speak up from the other side, those who want to live together in harmony with other faiths, but this voice is not coming across.  Nay Phone Latt and journalist Zaw Thet Htwe both raised questions about how to counter misinformation, to be vigilant and stop circulation of hate speech.

Participants of the symposium were concerned that people did not know how to exercise these new freedoms, especially in relation to the hate speech proliferating on the internet.  Htein Lin added that people need to take responsibility to oppose these voices and overcome intimidation.  He said that we needed more speech, not less.

New Freedoms and new responsibilities: 

 “Now I am free but have to work within the constraints of society, of what is happening” San Saw Htwe – visual artist

Religious conflict was forefront in many people’s minds and it was pointed to as a reminder that freedom of speech is not without its problems.  Many agreed that there need to be boundaries and there was some discussion about how to arrive a boundaries, but more focussed discussion on these and other related topics is needed.  One artist who had created hundreds of artworks in prison, said that he felt his most free when he was behind bars.  He explained that even though he was now free the constraints of society and pressure of what is happening are distractions that make him feel less free as an artist.

Poet and editor Maung Tin Thit saw it another way.  He said that in the time of precensorship of print media, he would send in his work to the censorship board and the censor would decide what would be published. Now the decision about what to say in public lies with the author and the editor, bringing new responsibilities which he found liberating.

Impact on artistic style and content  

“With the political situation changing, how will art change?” –  Zarganar

One of the key questions the symposium asked was how had the reforms affected artists who had developed a nuanced and subtle vocabulary to circumvent censorship. For several it is difficult to find their bearings, the mind-set is so deep seated that a two poets I spoke to agreed it would take time, maybe two years, to make work under such different conditions.

A performance artist who has made deeply political work for many years, told Index he had decided not to perform at all until after the 2015 elections and would spend his time documenting his work and making short films.

Performance artist Moe Satt commented that in performance and conceptual art he has seen a change from an urgent, cathartic explosion of tension to more conceptual work. Artists have repeatedly performed images of breaking out from closed spaces and now they have more space, work is more about feelings generated by breaking out.

A speaker claimed that poets were being criticised for sounding more like journalists than poets and the subtlety of their voice was lost; critics claimed there is more depth and substance when the message was indirect and hidden.  It was acknowledged there is a hunger for new subjects that were formally banned but that the public appetite will change soon and grow tired of works about prison experiences and political leaders.

Poet Eindra recited a work about the monks demonstrations in 2007.  At the time it would not have been possible for her to recite her own work so she had given it to fellow poet Ma Ei to circulate. One poet said that he did not want to publish his poems that were banned in the past because they would no longer be of the moment.

Testing the limits

“Every step is a test because we don’t know if it is allowed or not” Aw Pe Kyel (APK) – cartoonist

As seasoned activists, the symposium participants had experienced the pattern in contemporary Burma where space opens up for greater public participation only for this to be shut down again. While there is a strong feeling that this opening up is different and will be more lasting, there was a wariness about how long people will be able to enjoy this period of more free expression, how much daily life had really been affected and whether there would be some form of retribution in the future.   Min Ko Naing encouraged artists to test the authorities by going ahead with different works without permission.

Self-censorship: Several speakers referred to self-censorship as the most crippling form of censorship. APK put it succinctly – “We have these freedoms but we still censor ourselves”.  Old habits of self-censorship are hard to overcome; artists had to keep a censor in their heads for so many years that they were having difficulty escaping those unconscious boundaries. American anthropologist Jenny Leehey who wrote her PhD on censorship in Burma, talked about ‘public secrets’ that underpin all societies and how the symposium was an opportunity to openly share and so maybe finally dispel these public secrets from the old administration.  Her rhetorical question to the symposium was to ask what the new public secrets are and how they were changing.

Artist Associations and Unions

“We are in a boat – trying to row forward. Some people may want to paddle sideways or backward. That’s your right, but please don’t try to sink the boat” Thitsar Ni – poet

Independent artist unions and associations have flourished since becoming legal early in 2012.  Previously they had been run by government elected officials and toed the party line except for a brief period in 1988 when they joined the protests. Musician Myint Moe Aung reported that younger musicians and hip-hop artists have been accepted into the association and there is greater cooperation across generations, though it is not without tensions.  They have successfully campaigned for copyright and now, for the first time, radio stations have to pay musicians for broadcasting their music.  Poet Thitsar Ni spoke about the new poets union which was the first of the new wave of independent groups to come together.  He also spoke positively about the possibilities of collaboration, though noted difficulty of artists acting collectively.

Performance art

Throughout the symposium, as well as recitation of previously banned poetry, there were four performances that took the current state of the arts as their subject.

  • Ma Ei – she sat motionless in lotus position looking straight ahead, her eyes hardly blinking would occasionally fill with tears.  She threaded flowers which had already been discarded onto a long piece of thread.  When the thread was full her performance ended. After the performance she described that the woman was threading together old flowers thinking about when the time when there would be fresh flowers.
  • Saw Wai –Central to his performance was a torn map of Burma, referencing recent social conflicts, the savagery of hate speech and particularly songs with hate speech lyrics, a guitar and blooded paper also featured.  He read a poem of his called Aungban where nonagenarian poet Dagon Tar Yar friend of General  Aung San lives.
  • Suu Myint Thein In his own performance the day before ‘We live in Myanmar’ he asked people in the audience what they wished for and collected these on pieces of paper, almost choking as he ate them. He then tried to reach a bag of water, dyed blue to symbolise peace, hampered by ropes tied to his ankles.
  • Thet Swe Win is a poet who works on interfaith programmes.  He burned a computer keyboard, reference to Muslim-Buddhist conflict and the inflammatory role of social media in fuelling anti-Muslim feeling.  He sang ‘Imagine’ by John Lennon and quoted Buddhist texts and texts from the Koran and the Bible.
  • Sow Thaw Dar – wore a t-shirt that depicted three phases of censorship. The censors went from using black ink and then switched to silver, because people discovered they could rub off black ink and reveal the censored text underneath. Censorship became more invisible when computers were introduced and censors simply cut out words and phrases or whole pieces they did not like.


Zeyar Lin dedicated his presentation to the discussion of poetry in translation.  He featured two books of poems – one ‘Bones Will Crow’ which he edited with James Byrne editor of Wolf Magazine and an anthology of Burmese poetry translated into French without knowledge or permissions from the poets.  Despite the unprincipled way the French editors had appropriated the poems, the fact is that there are now two anthologies of contemporary Burmese poetry out there in the world.  This is a sign of art in transition and opening up of opportunities and possibilities for poets and new audiences around the world.   He finished his presentation by reading poems by a North Korean poet Jang Jin-Sung.


That independent newspapers hit the newsstands for the first time in over half a century the day after the first ever symposium on artistic freedom of expression illustrates clearly that political reforms are delivering concrete change in Burma.  At the same time violence between Buddhists and Muslims triggered debate about people’s readiness to handle new freedoms and uncertainty about the future of the press laws fuelled cynicism about the government’s commitment to reform. This mixed picture of opportunity, cynicism and anxiety was mirrored in the range of perspectives aired by the artists, activists and journalists at the symposium.

The premise of the symposium was clearly that artists are enjoying considerably more freedom and that the abolition of pre-censorship in print media had had a knock on effect across all the arts.  However,  the emerging role of public censorship, the changing nature of self-censorship and concerns about free speech online, were all cited as constraints on new freedoms.

Many of the presentations focussed on experiences of censorship that took place in the 80s, 90s and the last decade which reflected a preoccupation not to lose sight of the past in this period of transition. These stories still need to be told; they have been insufficiently heard and acknowledged and the contributing artists have experienced dramatic reversals by the government in the past.  A relatively small number of presentations focused on what is changing now, what is possible now and what needs to change in the future. Younger artists were more able to talk about the present than the older artists who had lived through 88 but they also expressed their concern that their work is only valued as much as it comments on the social and political situation of Burma.

There was a strong debate about the relationship between art and politics that will go on and the infrastructure is there to support it, in the form of new independent artist associations and unions, including The Motion Picture association.  There are other key agencies, many of which were represented at the symposium: HOME, New Zero, MCAC Beyond Pressure and education programmes like Loka Ahlin; the Burma Lawyer Council (led by NLD U Aung Thein), the Former Political Prisoner Association, Generation 88 Association.  There was interest in activating these networks to develop the debate, though it was also acknowledged that collective action by the conference participants would be very difficult given the number of different artist alliances and unions. It was felt that there was need for a specialist organisation like Index to get help these groups to engage at higher level of decision making, how to campaign and influence law making.

Annex – examples of projects and programmes that illustrate the artistic context for the symposium

Zarganar’s comedy event March 27 2013 – People’s Park

Without doubt the most significant and boundary pushing example of this was Zarganar’s comedy show, the biggest ever Anyeint performance[7], produced, written by and starring Zarganar which took place three days before the symposium. Featuring comedians who had recently returned from exile, the six hour marathon performance was broadcast live by Sky Net, a new pay-to-view independent TV channel and reinstated Zarganar as the most outspoken comedian in the country with an explosion of bare fisted satire. It was said that President Thein Sein watched the show on TV, and it would be interesting to know if he was surprised to find himself a target for satire alongside many other reformers and democrats including Aung San Suu Kyi, Min Ko Naing, Zarganar himself as well as democracy and freedom.

Freedom was portrayed in an unglamorous light “we are free to do anything now – sell our shit, piss on the streets” and even political activists were held up for ridicule as one scene saw protesters with empty placards went round in circles chanting join our cause – when asked what their cause was they said they didn’t know. He had had to submit the scripts to SkyNet before the show, but he departed from the script during the live broadcast performance and some of his riskiest gags were improvised, including a ruthless portrayal of the very unpopular but still powerful grandson of former premier, General Than Shwe.

Thangyat performance – April 2013

At the same time, celebrations for Thingyen – the Burmese new year four day water festival, were being prepared, in particular Thangyat troupes.  Traditionally an outspoken form of entertainment for the Burmese New Year, where teams of performers, competing for cash prizes, satirise mistakes made during the year so as to avoid repeating them in the coming year.  Last year the ban, which had been in place since 1988 was lifted and there was a low key revival of the form.  Now with more media attention than ever before, Sky Net was broadcasting the competition in Yangon and the first ever women’s troupe was performing in Mandalay it was interesting to see how new freedoms were being exercised and constrained.

Sky Net required all participating teams to submit their scripts or videos in advance and subsequently banned one troupe from the competition. The performers from the banned troupe thought that Sky Net was more sensitive to political satire than the current government and they were shocked and angry at being excluded. The troupe went ahead anyway and performed during the festival. In Mandalay pre-censorship of Than Gyat remains in the hands of city authorities and the all women Thangyat ensemble, like all the other troupes had to submit their scripts to the censors, though the group was determined to perform their script whatever the censors said.

Padauk 7000

Another art project Padauk 7000 was launched the weekend of the symposiumA temporary art space in the docks of Yangon, based in a fragile two storey wooden house due to be demolished in June to make way for a new apartment building. The space is run by an artist and an American journalist who crowd-sourced money to fund a series of weeklong site-specific exhibitions over a period of two months.  They didn’t apply for a licence.  Public exhibitions should, in theory, be licensed by the ministry of culture but they decided to test these requirements.  2 years ago running a squatted art space without alerting authorities would have risked arrest for the artist and deportation for the American. There is still a slight possibility of those things happening (a transitional government is an unpredictable one) but not enough to deter them.

[1] The symposium was a co-production between Index on Censorship and House of Media and Entertainment (HOME)

[2] The Irrawaddy literature festival, organised by the wife of the British Ambassador and conducted in English took place in February

[3] See a detailed assessment of the broader picture in Index’s report ‘Burma: freedom of expression in transition’.

[4] The MOI ‘Printers and Publishers Regulation Bill’ was passed by the Lower House of Parliament in July taking on very few of the changes pressed by the Press Council

[5] www.indexoncensorship.org

[6] Art of Freedom Film Festival co-produced with Min Htin Ko Ko Gyi and Aung San Suu Kyi took place within three months of Zarganar’s release from prison in October 2011.

[7] Anyeint is a traditional form of comic entertainment featuring an ensemble of comedians, with singers, dancers and musicians

This article was posted on February 24, 2014 at indexoncensorship.org

Europe’s rules on freedom of information and hate speech

Bob Dylan has been accused of hate speech

In France, Bob Dylan is being officially investigated for “incitement to hatred” against Croats for comparing their relationship to Serbs with that between Nazis and Jews in an interview.

This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression.

Freedom of information

Freedom of information is an important aspect of the right to freedom of expression. Without the ability to access information held by states, individuals cannot make informed democratic choices. Many EU member states have failed to adequately protect freedom of information and the Commission has been criticised for its failure to adequately promote transparency and uphold its commitment to freedom of information.

When it comes to assessing global protection for access to information, not one European Union member state ranks in the list of the top 10 countries, while increasingly influential democracies such as India do. Two member states, Cyprus and Spain, are still without any freedom of information laws. Of those that do, many are weak by international standards (see table below).

Screen Shot 2014-01-03 at 13.13.44

In many states, the law is not enforced properly. In Italy, public bodies fail to respond to 73% of requests.

The Council of Europe has also developed a Convention on Access to Official Documents, the first internationally binding legal instrument to recognise the right to access the official documents of public authorities. Only seven EU member states have signed up the convention.

Since the Lisbon Treaty came into force, both member states and  EU institutions are both bound by freedom of information commitments. Article 42 (the right of access to documents) of the European Charter of Fundamental Rights now recognises the right to freedom of information for EU documents as a fundamental human right Further, specific rights falling within the scope of freedom of information are also enshrined in Article 41 of the Charter (the right to good administration).

As a result, the European Commission has embedded limited access to information in its internal protocols. Yet, while the European Parliament has reaffirmed its commitment to give EU citizens more access to official EU documents, it is still the case that not all EU institutions, offices, bodies and agencies are acting on their freedom of information commitments. The Danish government used their EU presidency in the first half of 2012 to attempt to forge an agreement between the European Commission, the Parliament and member states to open up public access to EU documents. This attempt failed after a hostile response from the Commission. Attempts by the Cypriot and Irish presidencies to unblock the matter in the Council also failed.

This lack of transparency can and has impacted on public’s knowledge of how decisions that affect human rights have been made. The European Ombudsman, P. Nikiforos Diamandouros, has criticised the European Commission for denying access to documents concerning its view of the United Kingdom’s decision to opt out from the EU Charter of Fundamental Rights. In 2013, Sophie in’t Veld MEP was barred from obtaining diplomatic documents relating to the Commission’s position on the proposed Anti-Counterfeiting Trade Agreement (ACTA).

Hate speech

Across the European Union, hate speech laws, and in particular their interpretation, vary with regard to how they impact on the protection for freedom of expression. In some countries, notably Poland and France, hate speech laws do not allow enough protection for free expression. The Council of the European Union has taken action on combating certain forms and expressions of racism and xenophobia by promoting use of the criminal law within nation states in its 2008 Framework Decision. Yet, the Framework Decision failed to adequately protect freedom of expression in particular on controversial historical debate.

Throughout European history, hate speech has been highly problematic, from the experience and ramifications of the Holocaust through to the direct incitement of ethnic violence via the state run media during wars in the former Yugoslavia. However, it is vital that hate speech laws are proportionate in order to protect freedom of expression.

On the whole, the framework for the regulation of hate speech is left to the national laws of EU member states, although all member states must comply with Articles 14 and 17 of the ECHR.[1] A number of EU member states have hate speech laws that fail to protect freedom of expression –- in particular in Poland, Germany, France and Italy.

Article 256 and 257 of the Polish Criminal Code criminalise individuals who intentionally offend religious feelings. The law criminalises public expression that insults a person or a group on account of national, ethnic, racial, or religious affiliation or the lack of a religious affiliation. Article 54 of the Polish Constitution protects freedom of speech but Article 13 prohibits any programmes or activities that promote racial or national hatred. Television is restricted by the Broadcasting Act, which states that programmes or other broadcasts must “respect the religious beliefs of the public and respect especially the Christian system of values”. In 2010, two singers, Doda and Adam Darski, where charged with violating the criminal code for their public criticism of Christianity.[2] France prohibits hate speech and insult, which are deemed to be both “public and private”, through its penal code[3] and through its press laws[4]. This criminalises speech that may have caused no significant harm whatsoever to society, which is disproportionate. Singer Bob Dylan faces the possibility of prosecution for hate speech in France. The prosecutor’s office in Paris confirmed that Dylan has been placed under formal investigation by Paris’s Main Court for “public injury” and “incitement to hatred” after he compared the relationship between Croats and Serbs to that of Nazis and Jews.

The inclusion of incitement to hatred on the grounds of sexual orientation into hate speech laws is a fairly recent development. The United Kingdom’s hate speech laws contain specific provisions to protect freedom of expression[5] but these provisions are not absolute. In a landmark case in 2012, three men were convicted after distributing leaflets in Derby depicting a mannequin in a hangman’s noose and calling for the death sentence for homosexuality. The European Court of Human Rights ruled on this issue in its landmark judgment Vejdeland v. Sweden, which upheld the decision reached by the Swedish Supreme Court to convict four individuals for homophobic speech after they distributed homophobic leaflets in the lockers of pupils at a secondary school. The applicants claimed that the Swedish Supreme Court’s decision to convict them constituted an illegitimate interference with their freedom of expression. The ECtHR found no violation of Article 10, noting even if there was, the interference served a legitimate aim, namely “the protection of the reputation and rights of others”.

The widespread criminalisation of genocide denial is a particularly European legal provision. Ten EU member states criminalise either Holocaust denial, or the denial of crimes committed by the Nazi and/or Communist regimes. At EU level, Germany pushed for the criminalisation of Holocaust denial, culminating in its inclusion from the 2008 EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. Full implementation of the Framework Decision was blocked by Britain, Sweden and Denmark, who were rightly concerned that the criminalisation of Holocaust denial would impede historical inquiry, artistic expression and public debate.

Beyond the 2008 EU Framework Decision, the EU has taken specific action to deal with hate speech in the Audiovisual Media Service Directive. Article 6 of the Directive states the authorities in each member state “must ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality”.

Hate speech legislation, particularly at European Union level, and the way this legislation is interpreted, must take into account freedom of expression in order to avoid disproportionate criminalisation of unpopular or offensive viewpoints or impede the study and debate of matters of historical importance.

[1] ‘Article 14 – discrimination’ contains a prohibition of discrimination; ‘Article 17 – abuse of rights’ outlines that the rights guaranteed by the Convention cannot be used to abolish or limit rights guaranteed by the Convention.

[2] The police charged vocalist and guitarist Adam Darski of Polish death metal band Behemoth with violating the Criminal Code for a performance in 2007 in Gdynia during which Darski allegedly called the Catholic Church “the most murderous cult on the planet” and tore up a copy of the Bible; singer Doda, whose real name is Dorota Rabczewska, was charged with violating the Criminal Code for saying in 2009 that the Bible was “unbelievable” and written by people “drunk on wine and smoking some kind of herbs”.

[3] Article R625-7

[4] Article 24, Law on Press Freedom of 29 July 1881

[5] The Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 by adding Part 3A[12] to criminalising attempting to “stir up religious hatred.” A further provision to protect freedom of expression (Section 29J) was added: “Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”

Time to step up: The EU and freedom of expression

(Photo: Anatolii Stepanov / Demotix)

As Ukraine experiences ongoing protests over lack of European integration, Index’ new report looks at the EU’s relationship with freedom of expression (Photo: Anatolii Stepanov / Demotix)

Index on Censorship’s policy paper, Time to Step Up: The EU and freedom of expression, looks at freedom of expression both within the European Union’s  28 member states, which with over 500 million people account for about a quarter of total global economic output, but also how this union defends freedom of expression in the wider world. States that are members of the European Union are supposed to share “European values”, which include a commitment to freedom of expression. However, the way these common values are put into practice vary: some of the world’s best places for free expression are within the European Union – Finland, Netherlands, Denmark and Sweden – while other countries such as Italy, Hungary, Greece and Romania lag behind new and emerging global democracies.

This paper explores freedom of expression, both at the EU level on how the Commission and institutions of the EU protect this important right, but also across the member states. Firstly, the paper will explore where the EU and its member states protect freedom of expression internally  and where more needs to be done. The second section will look at how the EU projects and defends freedom of expression to partner countries and institutions. The paper will explore the institutions and instruments used by the EU and its member states to protect this fundamental right and how they have developed in recent years, as well as the impact of these institutions and instruments.

Outwardly, a commitment to freedom of expression is one of the principle characteristics of the European Union. Every European Union member state has ratified the European Convention on Human Rights (ECHR); the International Covenant on Civil and Political Rights (ICCPR) and has committed to the Universal Declaration of Human Rights. To complement this, the Treaty of Lisbon has made the EU Charter of Fundamental Rights legally binding which means that the EU institutions and member states (if they act within the scope of the EU law) must act in compliance with the rights and principles of the Charter. The EU has also said it will accede to the ECHR. Yet, even with these commitments and this powerful framework for defending freedom of expression, has the EU in practice upheld freedom of expression evenly across the European Union and outside with third parties, and is it doing enough to protect this universal right?


Within the European Commission, there has been considerable analysis about what should be done when member states fail to abide by “European values”, Commission President Barroso raised this in his State of the Union address in September 2012, explicitly calling for “a better developed set of instruments” to deal with threats to these perceived values and the rights that accompany them. With threats to freedom of expression increasing, it is essential that this is taken up by the Commission sooner rather than later.

To date, most EU member states have failed to repeal criminal sanctions for defamation, with only Croatia, Cyprus, Ireland and the UK having done so. The parliamentary assembly of the Council of Europe called on states to repeal criminal sanctions for libel in 2007, since then little action has been taken by EU member states. There also remain significant issues in the field of privacy law and freedom of information across the EU.

While the European Commission has in the past tended to view its competencies in the field of media regulation as limited, due to the introduction of the Charter of Fundamental Rights into EU primary law, the Commission is looking at a possible enhancement of its role in this area.

With media plurality limited across Europe and in fact potentially threatened by the convergence of media across media both online and off (and the internet being the most concentrated media market), the Commission must take an early view on whether it wishes to intervene more fully in this field to uphold the values the EU has outlined. Political threats against media workers are too commonplace and risks to whistleblowers have increased as demonstrated by the lack of support given by EU member states to whistleblower Edward Snowden. That the EU and its member states have so clearly failed one of the most significant whistleblowers of our era is indicative of the scale of the challenge to freedom of expression within the European Union.

The EU and its member states have made a number of positive commitments to protect online freedom, including the EU’s positioning at WCIT, the freedom of expression guidelines and the No-Disconnect strategy helping the EU to strengthen its external polices around promoting digital freedom. These commitments have challenged top-down internet governance models, supported the multistakeholder approach, protected human rights defenders who use the internet and social media in their work, limited takedown requests, filters and others forms of censorship. But for the EU to have a strong and coherent impact at the global level, it now needs to develop a clear and comprehensive digital freedom strategy. For too long, the EU has been slow to prioritise digital rights, placing the emphasis on digital competitiveness instead. It has also been the case that positive external initiatives have been undermined by contradictory internal policies, or a contradiction of fundamental values, at the EU and member state level. The revelations made by Edward Snowden show that EU member states are violating universal human rights through mass surveillance.

The Union must ensure that member states are called upon to address their adherence to fundamental principles at the next European Council meeting. The European Council should also address concerns that external government surveillance efforts like the US National Security Agency’s Prism programme are undermining EU citizens’ rights to privacy and free expression. A comprehensive overarching digital freedom strategy would help ensure coherent EU policies and priorities on freedom of expression and further strengthen the EU’s influence on crucial debates around global internet governance and digital freedom. With the next two years of ITU negotiations crucial, it’s important the EU takes this strategy forward urgently.

While the European Commission has in the past tended to view its competencies in the field of media regulation as limited, due to the introduction of the Charter of Fundamental Rights into EU primary law, the Commission is looking at a possible enhancement of its role in this area.

With media plurality limited across Europe and in fact potentially threatened by the convergence of media across media both online and off (and the internet being the most concentrated media market), the Commission must take an early view on whether it wishes to intervene more fully in this field to uphold the values the EU has outlined.

Political threats against media workers are too commonplace and risks to whistleblowers have increased as demonstrated by the lack of support given by EU member states to whistleblower Edward Snowden. That the EU and its member states have so clearly failed one of the most significant whistleblowers of our era is indicative of the scale of the challenge to freedom of expression within the European Union.

Where the EU acts with a common approach among the member states, it has significant leverage to help promote and defend freedom of expression globally. To develop a more common approach, since the Lisbon Treaty, the EU has enhanced its set of policies, instruments and institutions to promote human rights externally, with new resources to do so. Enlargement has proved the most effective tool to promote freedom of expression with, on the whole, significant improvements in the adherence to the principles of freedom of expression in countries that have joined the EU or where enlargement is a real prospect. That this respect for human rights is a condition of accession to the EU shows that conditionality can be effective. Whereas the eastern neighbourhood has benefitted from the real prospect of accession (for some countries), in its southern neighbourhood, the EU has failed to promote freedom of expression by placing security interests first and also by  failing to react quickly enough to the transitions in its southern neighbourhood following the events of the Arab Spring. The new strategy for this region is welcome and may better protect freedom of expression, but with Egypt in crisis, the EU may have acted too late. The EU must assess the effectiveness of some of its foreign policy instruments, in particular the dialogues for particular countries such as China.

The freedom of expression guidelines provide an excellent opportunity to reassess the criteria for how the EU engages with third party countries. Strong freedom of expression guidelines will allow the EU to better benchmark the effectiveness of its human rights dialogues. The guidelines will also reemphasise the importance of the EU, ensuring that the right to freedom of expression is protected within the EU and its member states. Otherwise, the ability of the EU to influence external partners will be limited.

Headline recommendations

• After recent revelations about mass state surveillance the EU must develop a roadmap that puts in place strong safeguards to ensure narrow targeted surveillance with oversight not mass population surveillance and must also recommit to protect whistle-blowers

• The European Commission needs to put in place controls so that EU directives cannot be used for the retention of data that makes mass population surveillance feasible

• The EU has expanded its powers to deal with human rights violations, but is reluctant to use these powers even during a crisis within a member state. The EU must establish clear red lines where it will act collectively to protect freedom of expression in a member state

• Defamation should be decriminalised across the EU

• The EU must not act to encourage the statutory regulation of the print media but instead promote tough independent regulation

• Politicians from across the EU must stop directly interfering in the workings of the independent media

• The EU suffers from a serious credibility gap in its near neighbourhood – the realpolitik of the past that neglected human rights must be replaced with a coherent, unified Union position on how to promote human rights


  • The EU has expanded its powers to deal with human rights violations, but is reluctant to use these powers even during a crisis within a member state. The EU must establish clear red lines where it will act collectively to protect freedom of expression in a member state
  • The EU should cut funding for member states that cross the red lines and breach their human rights commitments

Libel, privacy and insult

  • Defamation should be decriminalised in line with the recommendations of the Council of Europe parliamentary assembly, and the UN and OSCE’s special rapporteurs on freedom of expression.
  • Insult laws that criminalise insult to national symbols should be repealed

Freedom of information

  • To better protect freedom of information, all EU member states should sign up to the Council of Europe Convention on Access to Official Documents
  • Not all EU institutions, offices, bodies and agencies  are acting on their freedom of information commitments. More must be done by the Commission to protect freedom of information

Media freedom & plurality

  • The EU must revisit its competencies in the area of media regulation in order to prevent the most egregious breaches of the right to freedom of expression in particular the situations that arose in Italy and Hungary
  • The EU must argue against statutory regulation of the print media and argue for independent self-regulation where media bandwidth is no longer limited by spectrum and other considerations
  • Member states must not allow political interference or considerations of “political balance” into the workings of the media, where this happens the EU should be considered competent to act to protect media freedom and pluralism at a state level
  • The EU is not doing enough to protect whistleblowers. National states must do more to protect journalists from threats of violence and intimidation


  • The Commission must prepare a roadmap for collective action against mass state surveillance
  • The EU is right to argue against top-down state control over internet governance it must find more natural allies for this position globally
  • The Commission should proceed with a Directive that sets out the criteria takedown requests must meet and outline a process that protects anonymous whistle-blowers and intermediaries from vexatious claims

The EU and freedom of expression in the world

  • The EU suffers from a credibility issue in its southern neighbourhood. To repair its standing in the wider world, the EU and its member states must not downgrade the importance of human rights in any bilateral or multilateral relationship
  • The EU’s EEAS Freedom of Expression guidelines are welcome. To be effective, they need to focus on the right to freedom of expression for ordinary citizens and not just media actors
  • The guidelines need to become the focus for negotiations with external countries, rather than the under-achieving human rights dialogues
  • With criticism of the effectiveness of the human rights dialogues, the EU should look again at how the dialogues fit into the overall strategy of the Union and its member states

The European Union contains some of the world’s strongest defenders of freedom of expression, but also a significant number of member states who fail to meet their European and international commitments. To deal with this, in recent years, the European Union’s member states have made new commitments to better protect freedom of expression. The new competency of the European Court of Justice to uphold the values enshrined in the European Convention of Human Rights will provide a welcome alternative forum to the increasingly deluged European Court of Human Rights. This could have significant implications for freedom of expression within the EU. Internally within the EU there is still much that could be done to improve freedom of expression. It is welcome that that the EU and its member states have made a number of positive commitments to protect online freedom, with new action on vexatious takedown notices and coordinated action to protect the multistakeholder model of internet governance. Increasing Commission concern over media plurality may also be positive in the future.

Yet there are a number of areas where the EU must do more. The decriminalisation of defamation across Europe should be a focal point for European action in line with the Council of Europe’s recommendations. National insult laws should be repealed. The Commission should not intervene to increase its powers over national media regulators, but should act where it has clear competencies, in particular to prevent media monopolies and to help deal with conflict of interests between politicians and state broadcasters. Most importantly, discussions of mass population surveillance at the European Council in October must be followed by a roadmap outlining how the EU will collectively take action on this issue. Without internal reform to strengthen protections for freedom of expression, the EU will not enjoy the leverage it should to promote freedom of expression externally to partner countries. While the External Action Service freedom of expression guidelines are welcome, they must be impressed upon member countries as a benchmark for reform.

Externally, the EU has failed to deliver on the significant leverage it could have as the world’s largest trading block. Where the EU has acted in concert, with clear aims and objectives for partner countries, such as during the process of enlargement, it has had a big impact on improving and protecting freedom of expression. Elsewhere, the EU has fallen short, particularly in its southern neighbourhood and in its relationship with China, where the EU has continued human rights dialogues that have failed to be effective.

New commitments and new instruments post-Lisbon may better protect freedom of expression in the EU and externally. Yet, as the Snowden revelations show, the EU and its member states must do significantly more to deliver upon the commitments that have been agreed.

Full report PDFTime to Step Up: The EU and freedom of expression

This article was posted on 12 Dec 2013 at indexoncensorship.org

India: Digital freedom under threat?



Introduction and Recommendations | 1. Online censorship | 2. Criminalisation of online speech | 3. Surveillance, privacy and government’s access to individuals’ online data | 4. Access: obstacles and opportunities | 5. India’s role in global internet debates | Conclusion

Full report in PDF

The rules India makes for its online users are highly significant – for not only will they apply to 1 in 6 people on earth in the near future as more Indians go online, but as the country emerges as a global power they will shape future debates over freedom of expression online.

India is the world’s largest democracy and protects free speech in its laws and constitution.[1] Yet, freedom of expression in the online sphere is increasingly being restricted in India for a number of reasons– including defamation, the maintenance of national security and communal harmony, which are chilling the free flow of information and ideas. Many of the most restrictive laws and technical means used to enforce these restrictions are recent developments that have undermined India’s record on freedom of expression. A mix of social and political pressure, alongside the terrorist attacks in Mumbai in 2008, has led to this decline, but civil society is beginning to push back.

This paper explores the main digital issues and challenges affecting freedom of expression in India today and offers some recommendations to improve digital freedom in the country.

Constraints on digital freedom have caused much controversy and debate in India, and some of the biggest web host companies, such as Google, Yahoo and Facebook, have faced court cases and criminal charges for failing to remove what is deemed “objectionable” content. The main threat to free expression online in India stems from specific laws: most notorious among them the 2000 Information Technology Act (IT Act) and its post-Mumbai attack amendments in 2008 that introduced new regulations around offence and national security.

New regulations introduced in 2011 oblige internet service providers to take down content within 36 hours of a complaint, whether made by an individual, organisation or government body, or face prosecution. This is problematic in many ways: it makes intermediaries liable for content which they did not author on websites and platforms which they may not control and encourages them to monitor and pre-emptively censor online content, which leads to the excessive censorship of content.

Meanwhile, the arrest and prosecution of citizens who have posted content deemed “grossly harmful”, “harassing”, or “blasphemous” has multiplied. Censorship through the criminalisation of online speech and social media usage is troubling, especially when it affects legitimate political comment or harmless content.

Other issues addressed in this paper include how individual states and the national government of India restricts online communications using filters, and increasingly engages in mass surveillance, which can chill freedom of expression. One of the most pressing challenges to digital freedom remains India’s use of network shutdowns in certain regions, it is claimed, in order to prevent public disorder.

Ensuring access to the digital world remains a national challenge. With only 10 percent of the Indian population online today, there may be a billion new Indian netizens online in the future. How India enables this to happen will be a major challenge. While India is an increasingly influential player in global internet governance, now is a critical time to analyse its domestic regulations and policies that will shape the path not only for the people of India but also for regional neighbours and emerging democratic powers.

This paper is divided into the following chapters: online censorship; the criminalisation of online speech and social media; surveillance, privacy and government’s access to individuals’ online data; access to digital; and India’s role in global internet debates.

The online censorship chapter looks at intermediary liability and the issue of state and corporate censorship mainly via takedown requests and filtering and blocking policies. The criminalisation of online speech chapter covers the prosecution of Indian citizens who post content on the net, including on social media.

The surveillance chapter looks at the recent revelations on the extraordinary extent of domestic surveillance online, and how it contributes to chilling free speech online. It also looks at privacy and government’s access to individuals’ online data. The access chapter covers obstacles and opportunities in expanding digital access across the country.

Finally, the chapter on India’s role in global internet debates looks at India’s positioning in the current debates that will result in potentially significant changes to net governance in the next two years.

This policy paper is based on research from London and a series of interviews conducted between June and October 2013 with a range of interviewees from civil society, internet businesses, political figures and journalists.


To end internet censorship and provide a safe space for digital freedom, Indian authorities must:

• Stop prosecuting citizens who express legitimate opinions in online debates, posts and discussions;
• Revise takedown procedures, so that demands for online content to be removed do not apply to legitimate expression of opinions or content in the public interest, so not to undermine freedom of expression;
• Reform IT Act provisions 66A and 79 and takedown procedures so that content authors are notified and offered the opportunity to appeal takedown requests before censorship occurs;
• Stop issuing takedown requests without court orders, an increasingly common procedure;
• Lift restrictions on access to and functioning of cybercafés;
• Take better account of the right to privacy and end unwarranted digital intrusions and interference with citizens’ online communications;
• Maintain their support for a multistakeholder approach to global internet governance.


Introduction and Recommendations | 1. Online censorship | 2. Criminalisation of online speech | 3. Surveillance, privacy and government’s access to individuals’ online data | 4. Access: obstacles and opportunities | 5. India’s role in global internet debates | Conclusion

This report was originally posted on 21 Nov 2013 at indexoncensorship.org

[1] Article 19 of the Indian Constitution protects freedom of speech and expression. Government of India, ‘The Constitution of India,’ as modified up to the 1st December 2007, Article 19. (1)(a) ‘All citizens shall have the right to freedom of speech and expression’ http://lawmin.nic.in/ accessed on 23 September 2013.