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Alert

CAPSULE REPORT: ARTICLE 19 outlines freedom of expression concerns in region

(ARTICLE 19/IFEX) - The following is an abridged version of a 29 March 2007 ARTICLE 19 letter to the Spanish Foreign Affairs Minister:

D. Miguel Ángel Moratinos Cuyaubé
Spanish Minister of Foreign Affairs
OSCE Chairman in Office

29 March 2007

Dear Minister,

Re: Freedom of Expression Concerns in Western Europe

In January, my colleague Luitgard Hammerer met you in Vienna during your meeting with NGOs on the occasion of the launch of the Spanish Chairmanship of the OSCE. In the intervention she made at that time, she mentioned that ARTICLE 19, Global Campaign for Free Expression, has a number of concerns regarding freedom of expression not only in Eastern Europe but also in Western Europe. You expressed an interest in receiving a short written briefing from us on these concerns. Please accept this letter, which contains a summary of our key concerns, as that briefing. I hope that you will be able to use your current position as OSCE Chairman in Office to raise these concerns with OSCE participating states.


Many OSCE countries continue to face problems achieving an appropriate balance between the protection of reputation and the right to freedom of expression. In 2005, for example, out of a total of six freedom of expression cases decided by the European Court of Human Rights (ECtHR) involving Western European States, the vast majority, five in total, involved defamation laws and the Court found a violation of freedom of expression in four of these five.

The most pressing problems with defamation laws in Western Europe are as follows:

Defamation is still treated as a crime in the vast majority of Western European countries, punishable by a fine and usually even imprisonment. Most of these provisions date back to the 19th century or earlier. In some countries, they are rarely applied but remain on the books. The trend towards decriminalisation visible in younger democracies - such as Bosnia and Herzegovina, Ukraine, Georgia, Ghana, Togo and the Central African Republic - has not yet been picked up in Western Europe.

In most Western European countries, defamation laws continue to shield public figures, the State, government bodies and official symbols from criticism, despite the clear position of the ECtHR that public figures and bodies should tolerate more, not less criticism than ordinary people. (. . . )

Excessive damages in civil defamation cases are also problematic in some countries. (. . . )


Recent years have seen the adoption of laws in Western Europe containing vague and wide definitions of "terrorism" which could be used to stifle legitimate political and social protest.

The United Kingdom provides a good example. The last ten years have seen the introduction of ever stricter laws, with a broader definition of what constitutes "terrorism". A particular problem has been the banning, in the 2006 Terrorism Act, of not just direct incitement to terrorism but also of anything that can be interpreted as "indirect encouragement" or "other inducement" of terrorism, including in some circumstances glorification. This inhibits valid discussion and has a detrimental effect on community relations. It is fundamental to the guarantee of freedom of expression that any restriction for the purpose of national security, including preventing terrorism, is closely linked to preventing imminent violence.

(. . . )

Anti-terror legislation from Denmark, Spain and France also criminalise justification of glorification of terrorism. In mid-March 2007, 39 States had signed the Council of Europe Convention on the Prevention of Terrorism, and six had ratified it. The Convention is due to come into force in 1 June 2007, and requires States to criminalise "provocation" of terrorism, defined as "distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed". This wording is excessively broad: international standards limit restrictions to free expression on the grounds of national security when there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence. This principle has been endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, as well as by the European Court of Human Rights and many national courts.


Many Western European States have much weaker legal guarantees of the public's right to access information held by public bodies than the younger democracies of Eastern Europe. Examples of countries with particularly poor legislation in this field are Austria, Spain and Italy. These countries also have no public interest override. A 2006 empirical survey by the Open Society Justice Initiative found that authorities in Armenia, Bulgaria and Romania significantly outperformed France and Spain in providing information.

In the United Kingdom, freedom of information legislation entered into force only in 2005 and it remains to be seen how effective it will be. Unfortunately, its future is already under threat from two proposed amendments, one exempting the correspondence of MPs from disclosure and another making it much easier for public bodies to refuse complex requests on the basis that they are unduly costly.

In Cyprus, Malta, Luxemburg and Lichtenstein there is still no freedom of information legislation.


Many Western European States have laws on the books which offer overbroad protection to religious or other groups at the expense of freedom of expression. France, for example, has repeatedly been reprimanded by international courts for provisions in its 1881 Loi sur la liberté de la presse which protect religious groups from insult and prohibit challenging the conclusions of the Nuremberg Tribunal.

We identify three groups of such laws: blasphemy laws, which prohibit the mockery or denial of a religion; "denial laws", which prohibit contesting the occurrence of a historical event, usually genocide; and hate speech laws, which protect individuals against statements which attack them on national, religious or racial grounds.

(. . . )

All of the positions articulated above find significant support in international law and standards. Of particular relevance here is the fact that the Office of the Special Representative on the Freedom of Media of the OSCE has spoken out on all of them in his various statements.

ARTICLE 19 recommends that, as a priority, the OSCE urge all participating states:
- to repeal all criminal defamation laws and protect reputations only through the civil law;
- to ensure that anti-terror legislation is carefully and narrowly drafted so as not to undermine the right to freedom of expression;
- to enact and implement effective freedom of information laws, in line with best international standards; and
- to ensure that their legislative framework for protecting minorities does not unduly restrict freedom of expression.

ARTICLE 19 would be happy to continue a dialogue with the OSCE on these issues and to provide any assistance we can to further the recommendations above.

Yours truly,

Dr. Agnès Callamard
Executive Director

To read the complete letter, including footnotes, see: http://www.article19.org/pdfs/letters/western-europe-osce-cio-letter.pdf