World Press Freedom Day 2017 May 2017 Package EU DelegationAdvocacy Media4Democracy.EU is a technical assistance programme dedicated to assisting EU Delegations in the implementation of the EU Guidelines on Freedom of Expression Online and Offline. The aim is to enhance the capacity of EU Delegations (EUDs) to work on Freedom of Expression (FoE) creatively within the available frameworks, and to build on best practices.

April 2017 Produced by Media4Democracy http://www.media4democracy.eu/ Text and layout: ARTICLE 19 Infographics: Freedom House and ARTICLE 19 Contents

I. Topline talking points 6

II. The role of a free press in safeguarding freedom of expression and the right to information 6

III. Legitimate restrictions on freedom of expression 8

IV. The State of Freedom of Expression and a Free Press: Global Overview of the Present Situation and Key Challenges 9

Regional Trends 10 1. Sub-Saharan 10 2. Middle East and North Africa 11 3. Asia-Pacific 12 4. Eurasia 13 5. Europe 14 6. Americas 15

Overview of key and emerging challenges 16 1. Violence and impunity 16 2. Privacy, mass surveillance, and whistle-blowers 16 3. Counterterrorism and national security 16 4. Defamation 17 5. “Fake news”, misinformation and propaganda 17 6. Media concentration, financial regulation and advertising 18 7. Digital rights and intermediary liability 19 8. Internet governance 19

Successes in Promoting Press Freedom 20 Fighting Corruption and Organised Crime 20 Power of Investigative Reporting 20 Sustainable Development Goals and Access to Information 21 Protection Mechanisms 21 V. Issues of Note within the European Union 22

Deteriorating press freedom in European Union countries 22 “Hate Speech” 23 Anti-terrorism 24 Mass surveillance 24 Blasphemy 25 Criminal Defamation 25

VI. Resources 26 Further Information 27

VII. Sample activities to commemorate World Press Freedom Day 28 Immediate/On the day activities 28 Potential Invitees 28 Event Topics to Consider 29 Activities requiring short to medium planning 29

4 This advocacy package is for EU Delegations to use for World Press Freedom Day (WPFD) to raise awareness about freedom of expression and press freedom. As such, it includes background information, overviews of key issues, guides for possible activities and sources of additional information. This year’s global celebration of World Press Freedom Day 2017 takes place in , Indonesia (1 to 4 May) under the global theme of Critical Minds for Critical Times: Media’s role in advancing peaceful, just and inclusive societies. The focus this year will be on strengthening free and quality journalism to enable the media to effectively contribute to the achievement of Sustainable Development Goal 16: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.”. Specifically, the interrelationships between freedom of expression, justice for all and the rule of law, peace, and inclusiveness are to be explored.

5 I. Topline talking points

Freedom of expression and are under increasing attack around the world, with independent rankings showing press freedom in a notable decline globally in the past decade. According to Freedom House, 2016 marked the 12th consecutive year of decline in global press freedom.1 Free, diverse and independent media are essential to promote and protect democracy worldwide as recognized in Agenda 2030, formerly called the Sustainable Development Goals. Without freedom of expression and press freedom, an informed and engaged citizenry is not possible. The EU encourages all states to fulfill their global obligations to protect freedom of expression by providing a supportive legal environment and prosecuting all attacks against journalists to combat impunity. In the past two years – 2015 to the present- the EU has provided over 24 million EUR to support projects around the world enhancing the quality of journalism, access to public information and freedom of expression. Crucially, the EU also assists people who find themselves in danger for promoting the freedom of expression. In the last two years - since June 2015 - the EU has directly assisted about 205 people threatened for their defense or practice of freedom of expression - approx. 45 people under the Human Rights Defenders (HRD) small grant scheme and other 160 people under the emergency HRD grant scheme the ‘ProtectDefenders.eu’.

II. The role of a free press in safeguarding freedom of expression and the right to information

According to Article 19 of the Universal Declaration of Human Rights2 and the International Covenant on Civil and Political Rights3, freedom of expression is the right of every individual to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Freedom of expression is not only important in its own right, but is essential if other human rights are to be achieved, including fundamental democractic principles such as freedom of assembly and association. At an individual level, freedom of expression is key to the development, dignity and fulfilment of every person.

1 The Freedom of the Press 2016 report, Freedom House, available at: https://freedomhouse.org/report/freedom-press/freedom-press-2016 2 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html 3 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html

6 Free, diverse and independent media are essential to promote and protect democracy worldwide. As referenced in the EU Guidelines on Freedom of Expression (para 4), by facilitating the free flow of information and ideas on matters of the public interest, and by acting as the ‘public’s watchdog’, independent media constitute one of the cornerstones of a democratic society. Without freedom of expression and freedom of the media, an informed and engaged citizenry is impossible.

Freedom House - Freedom in the world 2017: Populists and Autocrats: The Dual Threat to Global Democracy

7 III. Legitimate restrictions on freedom of expression

While the right to freedom of expression is universally recognised as one of fundamental importance, it is also accepted that the right is not absolute. Certain important public and private interests may justify action by the authorities which interferes with or limits the exercise of the right. As a result, freedom of expression can be restricted only in very narrow conditions, as defined in the three-part test under Article 19(3) of the ICCPR. This means that restrictions must: – Be provided by law: regulation must meet certain standards of clarity and precision, enabling people to foresee the consequences of their conduct; – Have a legitimate aim: these are only a) respect for the rights and reputations of others, b) protection of national security, c) public order (ordre public), and d) public health or morals; – Be necessary and proportionate to legitimate aim. The European Convention on Human Rights contains a slightly different formulation of the necessity test. Under Article 10(2), restrictions on freedom of expression must be “necessary in a democratic society.” This wording makes it plain that the purpose of a restriction may never be to shield the incumbent government from criticism and peaceful opposition to its policies.

‘Hate speech’ poses an illustrative example of the nuance involved in legitimate restrictions on freedom of expression. As noted in the EU Guidelines on Freedom of Expression, there is no universally accepted definition of the term ‘hate speech’ in international law. The term is usually used to refer to expression that is abusive, insulting, intimidating or harassing or which incites violence, hatred or discrimination against individuals or groups identified by a specific set of characteristics. Under international law, States are only required to prohibit the most severe forms of ‘hate speech’, namely the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (Article 20.2 ICCPR). ‘Hate speech’ legislation should not be abused by governments to discourage citizens from engaging in legitimate democratic debate on matters of general interest. In the European context, ECHR case law makes a distinction between, on the one hand, genuine and serious incitement to extremism and, on the other hand, the right of individuals (including journalists and politicians) to express their views freely and to “offend, shock or disturb”. In line with ECHR case law, the EU Framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law4 stipulates that the Member States shall make punishable the intentional public incitement to violence or hatred as well as the public condoning, denial or gross trivialisation of certain international crimes when carried out in a manner likely to incite to violence or hatred.

4 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:328:0055:0058:EN:PDF

8 IV. The State of Freedom of Expression and a Free Press: Global Overview of the Present Situation and Key Challenges

Freedom of expression has experienced significant setbacks in recent years, with increasing attacks on the free press by state and non-state actors a hallmark of the decline, as noted by the United Nations Special Rapporteur on the freedom of opinion and expression.5 According to Freedom House, 2016 marked the 12th consecutive year of decline in global press freedom.6 Their report lists only 13% of the world’s population as living in countries with a Free press, defined as “coverage of political news is robust, the is guaranteed, state intrusion in media affairs is minimal, and the press is not subject to onerous legal or economic pressures,” with 36% living in Partly Free and 33% in Not Free countries. Another press freedom measure, Reporters Sans Frontieres (RSF) 2016 World Press Freedom Index (which measures the level of freedom available to journalists in 180 countries using the criteria of pluralism, media independence, media environment and self-censorship, legislative environment, transparency, infrastructure, and abuses) noted “a deep and disturbing decline in respect for media freedom” in 2016. This is a universal problem. Notably both reports recorded press freedom declines in every region of the world. The predominant threats at present are linked to increasing partisanship and government attempts to control the narrative in their countries, and the degree of legal and extralegal intimidation and physical violence faced by journalists. Please note that the regional trends below provide only an overview and it is suggested that the EU Delegations refer to the additional information resource materials to find more detailed information about specific countries.

5 Annual Report to the UN General Assembly, 6 September 2016 http://www.un.org/ga/search/view_doc.asp?symbol=A/71/373 6 The Freedom of the Press 2016 report, Freedom House, available at: https://freedomhouse.org/report/freedom-press/freedom-press-2016

9 Regional Trends

1. Sub-Saharan Africa The percentage of countries ranked as “Free” by Freedom House declined from 8% to 6% between 2015 and 2016, although on the positive side there was also a slight decline from 42% to 40% of countries ranked as “Not Free”. Journalists face increasing pressure from political parties seeking to halt critical coverage, particularly during election periods. This was particularly true in Burundi, which saw one of the most significant global declines in press freedom (156th out of 180 in RSF rankings, down 11 places) due to the violence against journalists and closure of independent media resulting from the contested Presidential election. Other methods that reduced press freedom included passage of repressive laws, intimidation of journalists by state and non-state actors, and threats to withdraw state advertising. Conflict also played a significant role, with South Sudan seeing the largest drop in press freedom, related to the ongoing civil war. Some gains were seen in West Africa, including the reform of libel laws (Burkina Faso) and a reduction in physical attacks in some countries (Cote D’Ivoire). At the top of the regional scale, Namibia was Africa’s best-ranked country by RSF at 17th place, which notes “its constitution guarantees media freedom, its journalists are safe, its media landscape is diverse and no restrictions are placed on the Internet.”

Source: Freedom House - Freedom in the world 2017

10 2. Middle East and North Africa The number of countries ranked “Free” by Freedom House declined from 1 to 0 between 2015 and 2016, as Israel dropped in the rankings. The percentage of countries listed as “Not Free” remains at 79%, the worst regional ranking in Freedom House’s report. The region continued to be one of the world’s most dangerous for journalists. Conflict areas, particularly Syria, Iraq and Yemen, saw journalists pressured and killed by radical groups and governments alike. Even in places without armed conflict, terrorism concerns or military actions prompted crackdowns on legitimate reporting and commentary, and led to self-censorship on the part of journalists and social- media users. Tunisia lead the regional rankings, at 96th place (up 30 spots) in the RSF rankings, one of the biggest gains in the world, due to positive laws passed on securing press freedoms. However, even here there were challenges, as Freedom House notes “journalists faced greater police aggression while attempting to report on the aftermath of terrorist violence, and some outlets displayed a closer alignment with the government on security issues.”

Source: Freedom House - Freedom in the world 2017

11 3. Asia-Pacific 2016 witnessed one country, Bangladesh, slipping from “Partly Free” (30%) to “Not Free” (35%) due to increased violence and state repression of online discourse, with “Free” countries continuing at 35% of the countries included. While many of the Pacific Island nations continued to make positive progress on press freedom, journalists and commentators across much of South and Southeast Asia increasingly face threats and deadly violence for raising controversial topics or challenging government narratives. Sri Lanka (141st, up 24 places in RSF’s Index) is the Asian country that rose most in the 2016 Index after a new government reduced violence against journalists. Samoa’s Media Council law adopted in 2015 decriminalized defamation, strengthened pluralism and gave the media more leeway to criticize, resulting in one of the largest positive movements on RSF’s index (up 11 places to 29th). But governments did little to discourage vigilante attacks on members of the press in India, Bangladesh and Vietnam. And some of the region’s governments are instituting laws to ban and prosecute discussion of such issues rather than protecting freedom of expression, often under the justification of maintaining public order or national security, for example in Malaysia and the Maldives.

Source: Freedom House - Freedom in the world 2017

12 4. Eurasia The overall Freedom House Rankings remained unchanged, with 0% Free, 23% Partly Free and 77% Not Free, representing the worst overall regional ranking in the report. However, negative developments occurred in a number of countries. This region remains one of the worst for press freedom in the world, with steady declines noted for a number of years. RSF ranks nearly 2/3rds of the countries in the region in the bottom of their Index with scored in continual decline. National security and counter-terrorism justification are used to close down on what small space is left for a free press in the region. Worryingly, Russian-style state propaganda models continue their spread across the region. Freedom House notes: “Having already destroyed most platforms for dissent, several repressive regimes in Eurasia adopted a two-pronged approach toward the media in 2015 and 2016: deepening systemic controls on the flow of information while making an example of the few independent journalists who continued to operate.” For example, Tajikistan experienced the largest decline in the RSF rankings (down 34 places to 150th) through using “counter- terrorism” as grounds for gagging critics and consolidating authoritarian rule. On the positive side, Ukraine experienced one of the largest increases in the Press Freedom Index, up 22 places to 107th due to a decline in violence and political reforms, although much remains to be done.

Source: Freedom House - Freedom in the world 2017

13 5. Europe While the percentage of countries listed as “Free” remained constant at 69%, the percentage of countries listed as “Not Free” increase to 5% as Macedonia slipped from “Partly Free” due to violence directed at journalists reporting on corruption. Concerningly, a number of countries experienced significant declines in the rankings within categories. Over the past 10 years, Europe as a whole has suffered the largest drop in press freedom of any region in the Freedom of the Press report by Freedom House. Political pressure, economic hardship, physical attacks against journalists, restrictive legislation and a general financial crisis in the sector have all influenced the media’s ability to operate freely. The region has also seen an increase in counter-terrorism, counter violent extremism and surveillance laws that restrict freedom of expression, with the press freedom decline in post-coup-attempt Turkey being the most alarming. More recently, according to the RSF, the Spanish Citizen Security Protection Law (known as the “Gag Law”) has had a restrictive impact of freedom of expression and information since 2016 through imposing excessive fines on expressive acts directed towards the police, with at least six journalists fined for allegedly obstructing the police or for photographing them. In France, the RSF suggested that there has been an increase in police violence against reporters covering demonstrations against the labor law and the dismantling of the “jungle” at Calais. The run-up to the 2017 presidential election has seen growing hostility towards journalists from political parties and the public. In the UK, in November 2016, the UK parliament passed the Investigatory Powers Bill in order to consolidate and update existing legislation on surveillance powers, which fails to comply with the UK’s international human rights obligations. At the same time, the UK legislation for bulk surveillance is being challenged in two separate cases at the ECHR. It is expected that the courts will call for safeguards and restraints on the highly permissive UK surveillance regime. For more examples, see section V below on issues within the EU.

Source: Freedom House - Freedom in the world 2017 14 Source: Freedom House - Freedom in the world 2017

6. Americas The percentage of countries ranked ‘Free’ increased to 46% from 43% as Chile moved from ‘Partly Free’ to ‘Free’ in the report. However, these broad categories mask an overall decline in press freedom in the region noted by RSF, mostly due to increasing violence and impunity for attacks. RSF notes: “The main obstacles to media freedom came from institutional violence, as in Venezuela (139th, down 2) and Ecuador (109th), from organized crime, as in Honduras (137th, down 4), from corruption, as in Brazil (104th, down 5), from concentrated media ownership, as in Argentina (54th) and from cyber-surveillance, above all in the United States (41st). Brazil and Mexico remain two of the most dangerous democracies for journalists, with high rates of killings and persistent impunity. Threats from organized crime, official corruption, and abusive security forces were a problem in much of Central America, with government pressure also playing a role, particularly in more authoritarian regimes. A free press is under increasing attack in the United States, with the Trump Administration referring to the media as “the enemy of the people” and calling for tougher criminal libel laws to attack critics.

15 Overview of key and emerging challenges

1. Violence and impunity UNESCO reports that on average a journalist is killed every five days for performing their jobs. Local journalists are the most vulnerable, while the past two years have seen a notable increase in violent attacks against online journalists. The 2016 UNESCO Director General’s report on the Safety of Journalists noted that “2015 was the second deadliest year for journalists in the last ten years with 115 journalists killed7.” The countries where most journalists were killed in 2016 included Mexico, Syria and Iraq. One of the greatest threats to press freedom today is the failure by states to bring the perpetrators of violence to justice. The Committee to Protect Journalists (CPJ) Global Impunity Index and UNESCO research has found that in 9 out of 10 murders of journalists, there are no convictions.8

2. Privacy, mass surveillance, source protection and whistle-blowers Many States protect source confidentiality and whistleblowers as a matter of their domestic legal systems. Nonetheless, it is common for governments to restrict access to information and to penalize sources and whistleblowers, particularly in (but certainly not limited to) cases touching on national security and intelligence. Weak privacy protections and increasing use of mass surveillance technology make it easier for States to breach privacy and source anonymity.9 Anonymity and encryption are not new phenomena: anonymity has long facilitated the expression of controversial ideas and enabled dissent in many countries of the world. In his 2015 report to the United Nations, Special Rapporteur David Kaye noted the protection of anonymity is a vital component in protecting both the right to freedom of expression and the right to privacy10. Anonymity allows individuals to express themselves without fear of reprisal, and is especially important in those countries where freedom of expression is heavily censored. It enables whistleblowers to come forward and individuals to disclose their innermost concerns on a variety of issues in internet chat rooms.

3. Counterterrorism and national security A growing threat to freedom of expression globally is the increase in broad anti- terrorism and “extremism” laws which are criminalising legitimate reporting, leading to unjust penalties for journalists, human rights defenders and those critical of the government. For example, governments have used domestic terror attacks to pass laws that dramatically expand the use of “states of emergency” to roll back reporting on events that do not follow the official government narrative. Such a law in Egypt

7 http://en.unesco.org/dg-report 8 https://cpj.org/reports/2016/10/impunity-index-getting-away-with-murder-killed-justice.php 9 http://www.un.org/ga/search/view_doc.asp?symbol=A/71/373 10 http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/OpinionIndex.aspx

16 imposes “severe restriction on journalists and others reporting on “terrorist” attacks who include details or statistics that differ from those announced by the state. Those who do so could face at least two years in prison. The law effectively bans journalists from collecting information from different sources, including eyewitnesses and families, to challenge the government’s narrative. At least 18 journalists are already in detention on charges that include “broadcasting false information”, which is not a recognized under international law.”11 In numerous authoritarian countries, officials enforced anti-terrorism and national security laws in a manner that produced excessive or inappropriate punishments for online activity particularly.12

4. Defamation13 Defamation laws can be justified only if their genuine purpose and demonstrable effect is to protect people against false statements of fact which cause damage to their reputation. Nearly all countries have some form of protection, although it can have different names such as libel, calumny, slander, insult, desacato, lese majesté and so on. Defamation can be classified as either a civil tort or a criminal offence. Criminal defamation laws are inherently harsh and have a disproportionate chilling effect on free expression. In a number of countries across the world, criminal defamation laws are used to for the ill-defined and stifling protection of “feelings”, which are subjective and place a plaintiff in a position where they need only persuade a court that they feel offended. The struggle between freedom of expression and protecting reputation has found a new battlefield in the Internet, where allegedly defamatory statements can be hyperlinked, tweeted, re-tweeted or be permanently available. Worrying trends in this area include calls or decisions to hold individuals and Internet intermediaries liable for allegedly defamatory material that they have not authored or interfered with.

5. “Fake news”, misinformation and propaganda14 Following a year of significant political shifts around the world, attention has been paid to the role of misleading or deliberately false news stories, otherwise known as “fake news.” Influential voices have called for a battle to be fought against the viral spread of “fake” stories that infect populations with “dangerous” opinions.15 This poses a significant danger for freedom of expression, as truth is a subjective term and news stories are often complex and intricate, so inaccuracies in reporting can be commonplace. In March 2017, the collective Special Rapporteurs on freedom of expression from the United Nations, the Organisation of American States, the African Union and the OSCE put out a joint statement on fake news identifying general

11 https://www.amnesty.org/en/latest/news/2015/07/egypt-draconian-counterterrorism-law/ 12 Freedom on the Net 2016, Freedom House, Available at: https://freedomhouse.org/report/freedom-net/freedom-net-2016 13 Saloua Ghazouani, Director of ARTICLE 19 Tunisia and MENA region, https://www.article19.org/resources.php/ resource/38676/en/updated-defamation-principles-provide-guidelines-on-defamation-in-digital-age 14 Social Media and “Fake News” from a free speech perspective, ARTICLE 19 https://www.article19.org/resources.php/ resource/38572/en/social-media-and-%E2%80%9Cfake-news%E2%80%9D-from-a-free-speech-perspective 15 Article 19, Social Media and Fake News from a Free Speech Perspective.

17 principles that should apply to any efforts to deal with “fake news” to ensure that efforts to counter it do not lead to censorship, the suppression of critical thinking or other approaches contrary to human rights law. To address this challenge and to help readers distinguish between objective reporting and propaganda or deliberately false news, online media distributors are developing methodologies to signal verified information and objective reporting from the “fake news” to their users. Other efforts are focusing on enhanced media literacy and a restoration of public support for objective reporting.

6. Media concentration, financial regulation and advertising16 In most countries, the media works in a commercial market and should be regulated like other companies. However, commercial issues such as ownership, taxes, and advertising revenue can all seriously undermine media independence and diversity. Concentration: Individuals, companies and governments can form anti-competitive media monopolies by purchasing a large proportion of the media in a country. Concentration of ownership can result in less diverse opinions or, worse, block the publication of information that is in the public interest. Additionally, if several media outlets are acquired by the same corporation, that corporation may decide to save money by simply using the same stories in each of its outlets. The economies of scale achieved by large media conglomerates also mean that competing smaller publications have to reduce their expenditures, and are no longer able to create investigative news items. The concentration of media ownership is increasing. For example, the European Audiovisual Observatory, part of the Council of Europe, has recently published a study examining this issue and highlighting that European legislators must remain vigilant both at national and pan-European levels to ensure transparency of ownership and efficient monitoring procedures. 17 Financial regulation: The media, like any other company, should be held accountable by financial regulation. However, oppressive governments often use financial regulation to single out and over-burden the media in order to undermine their independence. Advertising: Advertising is a commercial part of the media which is affected by consumer and other laws. Some governments attempt to restrict advertising or have large state-sponsored advertising.

16 Statements taken from Article 19 comments on Media Concentration: https://www.article19.org/pages/en/concentration.html 17 European Audiovisual Observatory, Media Ownership, Market Realities and regulatory responses, 13 February 2017, available at http://www.obs.coe.int/en/-/pr-iris-special-media-ownership

18 7. Digital rights and intermediary liability18 Internet freedom around the world declined in 2016 for the sixth consecutive year, according to Freedom House. Much of this erosion came from laws that impose greater restrictions on freedom of expression and higher penalties to the online environment compared to offline, despite UN resolutions expressly prohibiting this. Authorities in 38 countries made arrests based on social media posts over the past year. Globally, 27 percent of all internet users live in countries where people have been arrested for publishing, sharing, or merely “liking” content on Facebook. The number of countries where such arrests occur has increased by over 50 percent since 2013. Internet intermediaries, such as internet service providers (ISPs), search engines and media, play a crucial role in enabling people to communicate. However, internet intermediaries are under increasing pressure to assume responsibility for the content that passes through their platforms. Usually this takes place without transparency and outside the scope of internationally recognised standards. Holding intermediaries, such as media, unduly liable for content they did not create or publish, such as uncurated comments posted by readers, can thus impact on freedom of expression. Although under the E-Commerce Directive, hosts benefit from from liability for third party content, this principle has been undermined at several instances. For example, concerns have been raised about the approach taken by the EC in relation to the Code of Conduct for Countering Illegal Hate Speech Online (see section below).

8. Internet governance19 The multi-stakeholder model of internet governance (which brings together government, business, academia and civil society to participate in the dialogue, decision making, and implementation) is under attack by governments who strive for more direct control over information flows and digital rights. Key decisions are being debated on the architecture and policies that underpin the operation of the internet, which will determine if the future internet will be a rights enabling or disabling space. The EU Guidelines on Freedom of Expression highlighted the need for the active engagement in debates at the Internet Governance Forum (IGF) and the World Summit on the Information Society (WSIS) Forum with a view to promoting a human rights perspective and a multi-stakeholder model and to foster awareness on freedom of opinion and expression issues in co-operation with civil society. The Guidelines also pledge to continue work towards maintaining and strengthening the multi-stakeholder model for the governance of the Internet.

18 Freedom on the Net 2016, Freedom House, available at: https://freedomhouse.org/report/freedom-net/freedom-net-2016 19 Internet governance is the development and application of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet.

19 Successes in Promoting Press Freedom

Fighting Corruption and Organised Crime The global transparency movement, personified by the Open Government Partnership, has been gaining traction. The European Union has been a global leader in increasing the transparency of government and adopting e-government platforms. This has in turn been enabled by the adoption of right to information laws in over 100 countries in the world. A free and independent press are frequent users of these laws to investigate corporations and governments, exposing corruption at great risk to themselves.

INFOGRAPHIC: ARTICLE 19 Right to Information Map

Power of Investigative Reporting 2016 witnessed a number of stories that spoke to the essential role of a free press in democratic societies. For example, the Panama Papers reporting shone a light on the way wealthy and connected individuals can exploit secretive offshore tax regimes, including a number of national leaders listed in the papers. This reporting lead to actual political change in some countries. Additionally, investigative reporters in 32 countries combined forces to expose the Russian Laundromat, “through which more than US$ 20 billion stolen from the Russian government by corrupt politicians or earned by organized crime groups was laundered through a series of ghost companies.”20

20 https://www.occrp.org/en/laundromat/the-russian-laundromat-the-world-responds

20 Sustainable Development Goals and Access to Information The United Nations Sustainable Development Goals, or Agenda 2030, Goal 16 calls for just, peaceful and inclusive societies, where fundamental freedoms are guaranteed through effective institutions. A free, independent and pluralistic media sector is essential in ensuring this goal is met. Goal 16 (SDG Goal 16.10) specifically includes a target on access to information and protection of fundamental freedoms (including freedom of expression), with UNESCO moving to define how the implementation of this will include support for a free press. Seeking, receiving, and imparting information by the general public helps to build the foundation for the overall achievement of the Agenda 2030.

Protection Mechanisms Support for human rights defenders, including journalists, is an integral part of the European Union’s external policy on human rights. Through the European Instrument for Democracy and Human rights (EIDHR), the EU can provide emergency assistance to human rights defenders and journalists at risk. The EIDHR provides urgent direct financial or material support for journalists at risk through a European Commission-managed small grant facility to provide up to 10.000 Euro to human rights defenders in need of urgent support either by headquarters or by EU Delegations. This small grant support may cover a range of emergency needs, such as the fees for the legal representation of defenders, to pay for the evacuation of a HRD to another country, or to support the operations of a Human Rights organisation, among other costs. Requests to use the small grants mechanism or emergency facility for HRDs should be addressed to the delegation or to the EIDHR team. Another EIDHR-funded mechanism, ProtectDefenders.eu, was established to protect defenders and journalists at high risk and facing the most difficult situations worldwide. The mechanism provides 24/7 urgent support for Human Rights Defenders facing imminent danger or threats. In the event of a crisis, defenders can contact ProtectDefenders.eu through a permanent emergency helpline and a secure webform, and request an emergency assistance or relocation grant. Additionally, ProtectDefenders.eu provides financial support to local human rights organisations in the implementation of activities aimed at advancing a human rights agenda and to counter violations.

21 V. Issues of Note within the European Union

There are a number of issues where international freedom of expression and press freedom organisations have criticised the European Union and European countries for not adhering to international standards. Amongst others these include:

Deteriorating press freedom in European Union countries

For country specific information about the deterioration of press freedoms within the European Union, please refer to the Freedom House country reports - https://freedomhouse.org/report/freedom-press/freedom-press-2016

Some recent examples of where EU Member States have been criticized and the EU response: – Since December 2015, the Polish Government has initiated a series of actions aimed at placing public service media broadcasters under its close control. These issues have been continuously addressed by the European Commmission. The EC has repeatedly stated that it believes that there is a systemic threat to the rule of law in Poland, which needs to be addressed as a matter of urgency. The EC remains ready to pursue a constructive dialogue with the Polish Government.21 – The restriction on media in Hungary has been increasing since the re-election of Victor Orban as Prime Minister in 2010. In October 2016, it suspended the print and online editions of Hungary’s most influential daily newspaper, Nepszabadsag, allegedly on financial grounds. In April 2017, the Government also adopted new legislation restricting academic freedom (so called Lex CEU). The EC has launched an investigation into this new law. Frans Timmermans, vice-president of the Commission, said the new law, which requires foreign universities to maintain a campus in their home countries, is “troubling many people in Europe” and may conflict with fundamental EU rules and values. – Concentration of media ownership in the EU countries has been identified as as a concern in terms of media pluralism (e.g. by the High-level Group on Media Freedom and Pluralism). The Preamble to the Media Services Directive (AVMSD, sec 8 and 94) stresses the need for Member States to prevent any actions which create dominant positions or restrict pluralism and and to enable independent regulatory bodies to carry out their work transparently and impartially. No binding measures obliging Member States to take action against media concentration have so far been adopted, however.

21 Source: EC, Rule of Law: Commission discusses latest developments and issues complementary Recommendation to Poland, Brussels, 21 December 2016

22 “Hate Speech” EU Framework Decision: The Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law from 2008 is for combating certain forms and expressions of racism and xenophobia by means of criminal law. This includes public incitement to violence or hatred directed against a group of persons or a member of such a group defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin when carried out by the public dissemination or distribution of tracts, pictures or other material. It also includes publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court in a manner likely to incite violence or hatred. The Decision has been criticised by the UN Special Rapporteur on the protection and promotion of the right to freedom of opinion and expressionfor not complying with international standards. It is asserted that ‘incitement to hatred’ is overly broad as the International Covenant on Civil and Political Rights (ICCPR) only requires states to prohibit “incitement to discrimination, hostility or violence.” It is also claimed that the Decision fails to provide for specific intent in relation to each element of the offence, as well as allows States to restrict expression without regard to the likelihood of harm, the content of the expression or its impact on the audience. It also allows for States to criminalise “publicly condoning, denying or grossly trivialising”, contrary to international standards. Lastly, the Decision makes no provision on interpreting and implementing the obligations it contains in the context of online communications22. Code of Conduct for Countering Illegal Hate Speech Online: The European Commission’s Code of Conduct for Countering Illegal Hate Speech Online, published in May 2016, was the outcome of discussions between the European Commission and Facebook, Microsoft, Twitter and YouTube (the IT companies) as well as civil society. The Code of Conduct specifically refers to the Framework Decision (please see above) as the legal basis for defining illegal hate speech under the Code. Despite its non-binding character, concerns have been expressed by digital rights experts in Europe that the Code could lead to more censorship by private companies and therefore a chilling effect on freedom of expression on the platforms they run23. The UN Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression has expressed concern that many attempts by States to tackle “hate speech” online have been misguided. These measures include requests for online intermediaries to screen or remove content, registration requirements to identify users’ real names, and the arbitrary blocking of websites. The Rapporteur also points to the volume of content posted online everyday, and the cross-border nature of communications, as complicating implementation of any law on hate speech. The Code of conduct does not follow these recommendations.

22 https://www.article19.org/data/files/medialibrary/38430/EU-Code-of-conduct-analysis-FINALpdf#page=7&zoom=auto,-25,633 23 https://edri.org/guide-code-conduct-hate-speech/

23 Anti-terrorism The EU Guidelines on Freedom of Expression state that the protection of national security can be misused to the detriment of freedom of expression. States must take care to ensure that anti-terrorism laws, treason laws or similar provisions relating to national security (state secrets laws, sedition laws, etc.) should be crafted and applied in a manner that is in conformity with their obligations under international human rights law24. Many EU countries have anti-terrorism laws with concerning implications for freedom of expression, including France and the UK. Often “terrorism” is defined both vaguely and excessively broad in its reach, which criminalises not only acts that are ‘terrorist’ in nature, but also lawful gatherings and demonstrations, as well as many forms of behaviour that, while unlawful, cannot be regarded as “terrorism”. Anti-terror laws are also sometimes applied through executive powers that reduce judicial oversight. Many anti-terror laws include the encouragement, justification and glorification of terrorism that go beyond prohibiting direct acts of terrorism or their instigation. Freedom of expression protects not only views that are favourably received, but precisely those that are controversial, shocking or offensive. The press and others have a right to air such views and the public as a whole has a right to hear them. As the European Court of Human Rights has often emphasised, it is exactly these views that require protection25.

Mass surveillance The EU Guidelines on Freedom of Expression state: “Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas. ... In this regard, Article 17 of ICCPR refers directly to the protection from interference with “correspondence”, a term that should be interpreted to encompass all forms of communication, both online and offline.” A group of more than 15 leading international digital rights organizations have developed the International Principles on the Application of Human Rights to Communications Surveillance26. However, a number of EU countries have surveillance laws that affect the right to privacy with communications, Internet use and personal data being collected, stored and analysed, even when not are not under suspicion of a crime. They also often lack sufficient guarantees for the protection of journalists and their sources, whilst bulk hacking powers and seeking to break encryption could undermine the security of the Internet.

24 http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/142549.pdf 25 Principles on National Security, Freedom of Expression and Access to Information - https://muse.jhu.edu/article/13603#f0 26 Necessary and Proportionate: International Principles on the Application of Human Rights to Communications Surveillance https://necessaryandproportionate.org/principles

24 Blasphemy The EU Guidelines on the promotion and protection of freedom of religion or belief from 2013 state that laws that criminalize blasphemy restrict expression concerning religious or other beliefs27, although the European Court of Human Rights has ruled that states are permitted to enforce blasphemy provisions28 The EU recommends for the decriminalisation of such offences and forcefully advocates against the use of the death penalty, physical punishment, or deprivation of liberty as penalties for blasphemy. Whilst few would dispute that public debate should in practice take place in a respectful manner, particularly where it concerns beliefs held dearly by others, the EU works with and supports organisations advocating abolition of blasphemy laws. However, a number of European countries retain blasphemy laws, although such laws often go further than the duty to shield believers against “incitement to discrimination, hostility or violence” (as “hate speech” is defined) and prohibits denigration of their religion or religious symbols, irrespective of whether this constitutes hatred towards the religion’s adherents.

Criminal Defamation The EU Guidelines on Freedom of Expression state that defamation laws may lead to strong self-censorship to avoid the fear of being subject to severe criminal or civil sanctions, and as such the EU believes that defamation laws should not be misused to censor criticism and debate concerning public issues. In the laws of many EU countries defamation (see the International Press Institute’s Media Laws Database - http://legaldb.freemedia.at/legal-database/) is defined both as a civil wrong and a criminal offence. In other words, a person can either be sued for compensation by the affected person or be criminally prosecuted by the state. Criminal defamation is a disproportionate punishment and has a harsh effect on freedom of expression. International bodies such as the UN and the OSCE have recognised the threat posed by criminal defamation laws and have recommended that they should be abolished. However, the European Court of Human Rights has declined to rule that criminal defamation laws are by definition a violation of the right to freedom of expression29.

27 https://eeas.europa.eu/sites/eeas/files/137585.pdf 28 http://www.pewforum.org/2012/11/21/laws-penalizing-blasphemy-apostasy-and-defamation-of-religion-are-widespread/ 29 https://www.article19.org/pages/en/criminal-defamation.html

25 VI. Resources

– EU Human Rights Guidelines on Freedom of Expression Online and Offline, adopted by the Foreign Affairs Council meeting of 12 May 2014. https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/ foraff/142549.pdf – Media pluralism and democracy – Special Eurobarometer 452. Ahead of the 2016 Colloquium on Fundamental Rights, the Commission commissioned a special Eurobarometer survey on the topics of media pluralism and democracy. http://ec.europa.eu/COMMFrontOffice/publicopinion/index.cfm/Survey/ getSurveyDetail/instruments/SPECIAL/surveyKy/2119 – ProtectDefenders.eu is the European Union Human Rights Defenders mechanism, established to protect defenders at high risk and facing the most difficult situations worldwide. Led by a Consortium of 12 NGOs active in the field of Human Rights. – Freedom House, Press Freedom report and ranking: Evaluates media freedom rankings in 199 countries based on independent research and a panel of experts review, going back over 10 years. https://freedomhouse.org/report/freedom-press/ freedom-press-2016 – Freedom House, Freedom on the Net report is a study of internet freedom in 65 countries around the globe, covering 88 percent of the world’s internet users. https://freedomhouse.org/report/freedom-net/freedom-net-2016 – Reporters sans frontières, World Press Freedom Index and Country Information: Started in 2013, RSF has produce an index of 180 countries on a number of press freedom metrics, including the operating environment. https://rsf.org/en/ranking – Reporters sans frontières, Enemies of the Internet 2014: entities at the heart of censorship and surveillance http://12mars.rsf.org/2014-en/ – Committee to Protect Journalists, Country Specific Information: CPJ keeps a running list of the journalists killed or attacked around the world. They also produce an Global Impunity Index looking at the progress of investigations into journalists killings. https://www.cpj.org/2016/04/attacks-on-the-press.php; https://www.cpj.org/killed/2017/; https://www.cpj.org/reports/2016/10/impunity- index-getting-away-with-murder-killed-justice.php – Friedrich Ebert Stiftung, The African Media Barometer: this is a qualitative self- assessment instrument based on African standards http://www.fesmedia-africa. org/home/what-we-do/africa-media-barometer-amb/ – IREX Media Sustainability Index: IREX’s Media Sustainability Index (MSI) provides in-depth analyses of the conditions for independent media in 80 countries across the world. https://www.irex.org/resource/media-sustainability-index-msi – Council of Europe Platform on the Safety and Security of Journalists: http://www.coe.int/en/web/media-freedom

26 – UNESCO: The Director General of UNESCO provides an annual written report on journalists killings, with statistics by region and compared to previous reports: http://en.unesco.org/dg-report UNESCO also oversees and promotes the use of the Media Development Indicators: http://www.unesco.org/new/en/communication- and-information/resources/publications-and-communication-materials/ publications/full-list/media-development-indicators-a-framework-for-assessing- media-development/ – The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression provides regular reports to the United Nations on key freedom of expression issues, including press freedom violations that have been reported to the mandate: http://www.ohchr.org/EN/Issues/ FreedomOpinion/Pages/OpinionIndex.aspx – The Special Rapporteur on Freedom of Expression of the Organization of American States (OAS) works for the promotion of the right to freedom of expression through technical assistance in the processing of cases, precautionary measures and hearings, among others. http://www.oas.org/en/iachr/expression/index.asp – The Special Rapporteur on Freedom of Expression and Access to Information of the African Commission on Human and Peoples’ Rights (ACPHR) has a mandate to promote and protect the freedom of expression throughout the African Union (AU) Member States. http://www.achpr.org/mechanisms/freedom-of-expression/ – The OSCE Representative on Freedom of the Media is mandated to observe media developments in the participating States and to advocate and promote full compliance with the Organization’s principles and commitments in respect of freedom of expression and free media. http://www.osce.org/representative-on- freedom-of-media

Further Information The EU Delegations are welcome to contact Media4Democracy.EU for more information and for assistance to increase activities in the field of Freedom of Expression and Access to Information. Simply send an email to [email protected], or call +32 23 194 498

27 VII. Sample activities to commemorate World Press Freedom Day

EU delegations have the ability to bring together multiple stakeholders. This convening capacity enables them to stage public events showcasing the importance of freedom of expression and independent media, especially in countries where the freedom of expression and the press is under assault. Some suggested activities to commemorate WPFD are listed below. These can be adapted to country specific interests and are based on resourcing ability of the delegation.

Immediate/On the day activities 1. Promote key messages on the importance of Freedom of Expression, a free independent media, and transparency through social media platforms. Some hashtags that may be used include #WPFD2017, #PressFreedom, #Freedomofexpression, #Freespeech, #journosafe, #freeexpression, #journalismnotacrime, #mediafreedom, #foe, #medialiteracy, #righttoinformation 2. Support activities organised by other keys stakeholders in the country, such as events organised by the UNESCO, philanthropic organisations, donor groups, government (such as national Human Rights Commissions) and civil society.

For example, embassies can play an important role in disseminating UNESCO’s and their own campaign material for WPFD on social media. Posters are available here that embassies could print out to help raise awareness about the Day.

Potential Invitees EU Delegations may wish to invite a broad cross-section of governmental, academic, media and civil society actors to attend events marking WPFD, including any press Ombudsmen or representatives from the national Press Councils. In this way, guestlist will reflect the EU’s goals to support independent, pluralistic media and civil society. This might include: Government: Government ministries or departments that could be interested in WPFD events will vary by country, but can include: Ministries covering information and/or media, parliamentarians and lawmakers (including members of parliamentary oversight bodies), public prosecutors, law enforcement agencies Legal community: Bar and lawyer associations, media lawyers, judges and judicial training actors. The International Media Lawyers Association can be a reference in this regard: http://www.internationalmedialawyers.org/ Media: Journalist associations, editors associations, publishers associations, media regulatory authorities, print and broadcast mass media outlets, bloggers, social media platforms and technology companies, with particular attention to minority and female voices. The Committee to Protect Journalists provides reference link to journalism organisations: https://cpj.org/reports/2012/04/journalism- organizations.php

28 Academia: National university academics focusing on media, think tanks focusing on media development, governance and human rights NGOs: national and international non-governmental organisations (NGOs) focusing on media development, governance and human rights. See www.ifex.org or https://gfmd.info/ for suggestions.

Event Topics to Consider Please consult the brief regional overviews and the reports listed in the resources for specific topics on challenges. Some possible topical subjects to consider, given the theme of WPFD in 2017: – The role media can play in enhancing accountabiltiy and furthering the achievement of the Sustainable Development Goals – Threats faced by journalists in conflict zones and how States can better support them – Countering “fake news”: Steps to improve media literacy – How to distinguish real from “fake”? Developments in social media – Tackling Impunity: measures needed to combat violence against journalists – The national media landscape: how is it changing and what it means for the future of journalism – Freedom of Expression legal check-up: review of the national legal regime protecting freedom of expression and how it can be enhanced

Activities requiring short to medium planning

Debates and Dialog – Provide in-kind support for the main event in the host country, whether financial or intellectual hosted by civil society organisations working on freedom of expression. – Debates, panel discussions and/or roundtables with representatives of the government, IGOs and civil society to discuss the most pressing or topical freedom of expression issues in country, possibly including some of the topics listed above. – Depending on the country, the EU Delegation may consider bringing a prominent and authoritative person to talk about the post truth society/ media literacy with local NGOs and media to exchange experience and views. – To signal EU support for civil society and independent journalism, invite groups of civil society activists and independent journalists for a free-ranging, on-the-record discussion on press freedom, transparency, and access to information - with high level participation from the EU Delegation. – Review the state of press freedom in the country and write articles or opinion pieces in the press promoting EU actions on Freedom of Expression in light of the local content. See the EEAS briefing for more on this, or contact Media4Democracy for suggestions Awards – Support independent and high-quality journalism by awarding special recognition to a local journalist or social media communicator for their work. The award could draw attention to traditionally marginalised voices in the media, like women or under-represented minorities.

29 Educational – Facilitate interaction between journalists and schools to build media literacy. This could include organising events where journalists visit schools and speak about the importance of being skilful at interpreting news as a way to promote media literacy. The Cartooning for Peace Network can provide good suggestions to education events. – Organise an event for local university journalism students to meet with media actors (journalist, media houses, prominent bloggers) to learn from their experience and gain connections in the field.

Artistic – Organise a “controversial speech/art” exhibition at the EU Delegation focussing on the best political commentary or satire. – Sponsor a pop-up photo exhibit of the best photojournalism in the country or regional at the EU Delegation

Looking Forward The EU Delegations are encouraged to consider how they can support press freedom and freedom of expression beyond World Press Freedom Day. This long-term and deeper engagement will be vital to ensuring the safety and security of journalists around the world. Some ideas to consider: – Awareness and commitment to press freedom and safety of journalists needs to be built at the national level. As such, many international agreements remain with Foreign Ministries and are not mainstreamed at the national level. The EU delegations could promote the adoption of the international standards that exists, as well as encourage partner countries to undertake national monitoring and respond to UNESCO’s bi-annual requests for information, engage with the UN and regional special rapporteurs covering press freedom, and to build national protection and prosecution mechanisms. – Launch of fellowships, grant schemes, or a pooled fund for independent media actors, in particular for those most vulnerable- such as investigative journalism, bloggers, women journalists, those reporting on politics and corruption. This would indicate a long-term support to Freedom of Expression and Media Freedom beyond WPFD. – Fellowships/prizes to writers/journalists/bloggers/artists not allowed through state publishers or official channels. Bringing new voices to the fight to protect/promote free expression. In general, include writers and creative figures in free expression efforts. – Sponsor small festivals with literary and nonfiction expression celebrating what expression rights make possible, and in this way show support to CSOs defending free expression.

Other Sessions at the UNESCO WPFD global event For further information about the global UNESCO World Press Freedom Day event being held this year in Jakarta, including descriptions of the sessions and ‘points to ponder’, can be found at: http://en.unesco.org/world-press-freedom-day-2017/ programme

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