Digital rights are human rights

As the boundaries between our online and offline lives blur, is there really a distinction between “digital” and other human rights?

UN Photo Eleanor Roosevelt

UN Photo | Eleanor Roosevelt, holding the Universal Declaration of Human Rights

What do we mean when we talk about “digital rights”? This is a fundamental question that influences the Digital Freedom Fund’s strategy as we define the parameters for supporting the work of activists and litigators in Europe.

A quick search online yields a variety of definitions, most of which focus on the relationship between human beings, computers, networks and devices. Some of the narrower ones focus on the issue of copyright exclusively.

As our lives are digitalised further, does this approach to defining the term make sense?

In many ways, we already live in the sci-fi future we once imagined. The internet of things is here. Our food is kept cold in what we used to call a fridge, but what is now a computer that also has the ability to freeze things. The main way in which we communicate with our colleagues, family and loved ones are our mobile devices and what happens on social media is alleged to have a significant impact on elections. Our data are being collected by governments and corporations alike. In all of these contexts, our basic human rights – our rights to freedom of expression, freedom of assembly, privacy, and the like – are implicated. If there ever was a dividing line between “digital” rights and human rights, it has blurred to the point of irrelevance.

In line with the reality of our time, at DFF we work with a broad definition of digital rights for our grantmaking and field support activities. We consider digital rights to be human rights as applicable in the digital sphere. That is human rights in both physically constructed spaces, such as infrastructure and devices, and in spaces that are virtually constructed, like our online identities and communities.

If digital rights are human rights, then why use a different term? The label “digital rights” merely serves to pinpoint the sphere in which we are exercising our fundamental rights and freedoms. To draw concrete attention to an issue, using a term that expresses the context can help with framing and highlighting the issue in a compact manner. With our digital rights under threat on many fronts, this is important. Just as it was important, in 1995, for Hillary Clinton to state at the Women’s Congress in Beijing that “human rights are women’s rights, and women’s rights are human rights,” and for President Obama in 2016 to stress that LGBT rights are human rights, we should all be aware that digital rights are human rights, too. And they need to be protected.

As we further engage with the digital rights community in Europe, we look forward to supporting their important human rights work and highlighting their successes in this space. Part of that mission also includes creating broader understanding that digital rights are indeed human rights. We hope you will join us in sharing that message.

This article has been cross-posted on the Digital Freedom Fund blog. To follow DFF’s work and be notified when we launch, sign up for our newsletter and follow us on Twitter.

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Online harassment of women journalists and international law: not “just” a gender issue, but a threat to democracy

Democracy

Image by ydant (CC BY-NC-ND 2.0)

Online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process. Silencing journalists stifles the free flow of information and our ability to exercise our democratic rights; a pluralistic media landscape needs to include women’s voices. Silencing women journalists therefore constitutes an attack on democracy itself. States should address the issue with the gravity it deserves and live up to their international obligations to put in place domestic legal systems capable of responding adequately to these attacks.

 

The problem

When a 14-year-old girl was raped in Finland, journalist Linda Pelkonen covered the case on the news website Uusi Suomi. In her report, she mentioned that, contrary to regular practice, the police had referred to the suspect’s ethnicity: allegedly a Finnish citizen of immigrant background had been involved. A post smearing Pelkonen appeared on the anti-immigrant MV Lehti website, after which she received a host of rape and death threats. After a reader published Pelkonen’s personal phone number in the website’s comment section, encouraging others to inform the journalist of their discontent, she received threatening text messages from 18 different phone numbers, and a phone call telling her she would be raped. Pelkonen reported the threats to the police, informing them that she was scared. Declining to investigate, the regional prosecutor argued that journalists, due to the public nature of their work, needed “to be able to endure more criticism than others.”

UK think tank Demos estimates that women journalists receive three times as many abusive comments on Twitter as their male counterparts

Sadly, Pelkonen’s case is hardly an exception. No comprehensive study on the pervasiveness of online harassment of women journalists has been conducted yet, but the data available paint a gloomy picture. UK think tank Demos estimates that women journalists receive three times as many abusive comments on Twitter as their male counterparts. A survey conducted by the International Women’s Media Foundation showed that over 25% of “verbal, written and/or physical intimidation including threats, to family or friends” took place online.

This week, the OSCE Representative on Freedom of the Media organised its second workshop this year on the safety of female journalists online. In addition to discussing issues such as digital security and civil society initiatives like HeartMob, the workshop addressed the international legal framework within which the online harassment of women journalists should be placed.

“Online” harassment

What are we talking about when we say “online” harassment of women journalists? It covers a broad range of actions, including threats of (sexual) violence, the spreading of falsehoods about a person asserted as facts, the posting of sensitive information online (home address, personal phone number, social security numbers), technological attacks such as falsely shutting down social media accounts, (sexist, racist) insults, and swatting.

The distinction between the “online” and “offline” world is artificial. That the medium used for the harassment is digital, does not mean that actual fear and anxiety do not follow from it.

The distinction between the “online” and “offline” world is artificial. To the extent that any separation between these dimensions of our lives could still be made today, any “online” harassment will always have a “real world” effect. That the medium used for the harassment is digital, does not mean that actual fear and anxiety do not follow from it.

This is underlined by UN Human Rights Council Resolution L.13  on the promotion, protection and enjoyment of human rights on the Internet, which affirms that “the same rights that people have offline must also be protected online, in particular freedom of expression”. Similarly, the OSCE Representative on Freedom of the Media issued recommendations in 2015, stating that “online abuse must be dealt with in the broader context of gender discrimination and violence against women to ensure that the same rights that people have offline must be protected online.”

International legal standards: at the intersection of freedom of expression and gender

The issue of harassment of women journalists needs to be framed from all relevant perspectives: as a freedom of expression issue and as an issue of gender-based violence against women.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which is further elucidated by the UN Human Rights Committee in General Comment 34, makes clear that the right to freedom of expression is a key right that can only be restricted under a limited set of circumstances. It is both an individual right of personal self-fulfilment and a collective right, allowing all members of society to receive information and ideas and inform themselves on matters of public interest. Journalists have a special role to play in this democratic process. As the UN Human Rights Committee, which oversees compliance with the ICCPR, frames it: “A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression … It constitutes one of the cornerstones of a democratic society.”

For the States that are party to the ICCPR (or one of its regional counterparts, the European Convention on Human Rights, American Convention on Human Rights or African Charter on Human and Peoples’ Rights), this also entails an obligation to ensure a diverse media landscape, both online and offline.

Attacks on women journalists are attacks on democracy itself.

The Convention on the Elimination of Discrimination against Women, often referred to as the “international bill of rights for women” defines discrimination against women and sets up an agenda for national action to end it. The CEDAW Committee, which oversees States’ compliance with the Convention, stated in General Recommendation 19, recently updated by General Recommendation 35, that gender-based violence against women constitutes discrimination against women. The Committee defines it as: “violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.” Online harassment of women journalists falls squarely within this definition, as is explicitly

6 February 1998 - Committee on the Elimination of Discrimination Against Women, United Nations Headquarters, New York addressing journalists at a press briefing

6 February 1998 – Committee on the Elimination of Discrimination Against Women, United Nations Headquarters, New York addressing journalists at a press briefing.

mentioned in the General Recommendation: “Harmful practices and crimes against women human rights defenders, politicians, activists or journalists are also forms of gender-based violence against women.”

The interlinkage between the right to freedom of expression and women’s right to be free from discrimination is also made explicit: “Women’s right to a life free from gender-based violence is indivisible from and interdependent with other human rights, including the right to … freedom of expression.”

This is where the crux lies: the online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process. Council of Europe Recommendation CM/Rec(2016)4 of the Committee of Ministers on the protection of journalism and safety of journalists and other media actors sums this up succinctly: “[acts of online harassment of women journalists] which in practice are committed by both State and non-State actors, have a grave chilling effect on freedom of expression including on the ability to access information, on the public watchdog role of journalists and other media actors and on open and vigorous public debate, all of which are essential in a democratic society.”

In other words: attacks on women journalists are attacks on democracy itself.

States’ obligations to create conditions for effective investigation, prosecution and protection

When signing on to a human rights treaty, a State takes it upon itself to respect, protect and fulfil its obligations under that treaty. The obligation to respect means that the State must refrain from interfering with or curtailing the enjoyment of the human rights contained in the treaty; the obligation to protect means that the State must protect individuals and groups against human rights abuses; and the obligation to fulfil means that the State must take positive action to facilitate the enjoyment these human rights.

These obligations are applicable to all branches of the State and all public or governmental authorities, at all levels that are in a position to engage the responsibility of the State. They also require the State to ensure that persons are protected from acts by private persons or entities that impair the enjoyment of the relevant human rights.

There is an obligation of the State to put into place a domestic legal system that is capable of responding adequately to threats, ensuring that perpetrators are prosecuted.

Specifically, there is an obligation of the State to put into place a domestic legal system that is capable of responding adequately to threats, ensuring that perpetrators are prosecuted. CEDAW General Recommendation 35 stipulates that “[S]tates parties have to adopt and implement diverse measures to tackle gender-based violence against women committed by non-State actors. They are required to have laws, institutions and a system in place to address such violence.”

Failing to do so constitutes a human rights violation in and of itself: “The failure of a State party to take all appropriate measures to prevent acts of gender-based violence against women when its authorities know or should know of the danger of violence, or a failure to investigate, prosecute and punish, and to provide reparation to victims/survivors of such acts, provides tacit permission or encouragement to acts of gender-based violence against women. These failures or omissions constitute human rights violations.”

National law and online harassment

What recourse can national legal systems offer to those targeted by online harassment? Generally, there are two possible tracks: civil proceedings or the criminal justice system.

Bringing a civil case can be time-consuming, expensive and emotionally draining. It can also have the unwanted effect of drawing additional public attention to the case, which can aggravate the harassment.

Under the civil law system, the target of harassment can initiate legal action against the attacker, suing them for a civil wrong. In some cases, for example if personal photos have been stolen and published, a copyright claim is also an option. The outcome of civil proceedings can be monetary compensation for the claimant and personal vindication for having won (or even pursued) the case. But bringing a civil case can be time-consuming, expensive and emotionally draining. It can also have the unwanted effect of drawing additional public attention to the case, which can aggravate the harassment.

Adequate follow-up by the authorities is not a given. Many legal systems operate with laws that have not been updated to meet the demands of the digital age.

Remedies in the criminal justice system can be a restraining order against the attacker, a criminal penalty, and in some systems also monetary compensation. Pursuing a case within the criminal justice system entails filing a complaint with the authorities, after which prosecution can follow. In most systems, the prosecutor will have discretionary powers to decide whether or not to pursue a case. As illustrated by the case of Pelkonen described above, adequate follow-up by the authorities is not a given. Many legal systems operate with laws that have not been updated to meet the demands of the digital age. Combined with a lack of understanding of modern technology by both law enforcement and judges, this can lead to a frustrating experience for those wanting to file a complaint about harassment. Journalist Amanda Hess described this aptly in her account of trying to file a report on death threats she received, upon which a police officer asked her “What is Twitter?”. In addition, law enforcement can be too under-educated and under-resourced to properly follow up and investigate even if they are willing to register a complaint.

When the regional prosecutor failed to follow up, Pelkonen did not give up. She filed a complaint at the prosecutor’s office together with the Union of Journalists in Finland, arguing that failing to prosecute her case would set a dangerous precedent. Finland’s Prosecutor General then decided to take up the case, which resulted in three men being charged in May 2017. The first hearing in the case is scheduled to take place in early 2018.

A threat to democracy itself

While the prosecution in Pelkonen’s case is a positive (interim) outcome, this by no means is an example of what should happen in these scenarios. The onus should not be on the targeted person to force the justice system into action: justice should be administered as a rule. States can and should do better in this regard.

The onus should not be on the targeted person to force the justice system into action: justice should be administered as a rule.

There is often a tendency to brush gender issues aside as “niche”. Given that women make up about half of the world’s population, this is a questionable argument as such, but it also simply isn’t true.

Silencing journalists stifles the free flow of information and our ability to exercise our democratic rights. There is a clear obligation of States to protect these rights and guarantee a pluralistic media landscape – a media landscape that includes women’s voices. Silencing women journalists is an attack on democracy itself and it should be dealt with, with the gravity it deserves.

This post has been cross-posted on Medium.

Time to change the picture: UN must urgently address lack of women in human rights bodies

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Photo: Evan Vucci/VP

President Trump provoked outrage and ridicule in January when he signed the anti-abortion “global gag rule” surrounded by a group of stern-looking white men. “As long as you live you’ll never see a photograph of 7 women signing legislation about what men can do with their reproductive organs”, Guardian editor Martin Belam commented on Twitter. Sentiment that was echoed far and wide across the media and internet. Yet, men making decisions that affect women in an overwhelmingly male setting is still very much the rule across the board, including at international organisations, courts, and tribunals.

“men making decisions that affect women in an overwhelmingly male setting is still very much the rule across the board, including at international organisations, courts, and tribunals”

Despite making up nearly half of the world’s population, women are sorely underrepresented in the international institutions that determine international human rights standards and are key forums for international relations and global cooperation. This includes the Special Procedures of the UN Human Rights Council, a group of individual human rights experts or groups of experts, who examine and report on human rights. These special procedures oversee the respect of human rights standards by States worldwide, addressing issues such as torture, freedom of expression and discrimination. Historically, only 33.4% of these positions have been held by women. This in spite of the percentage including positions such as the Working Group on the on the issue of discrimination against women, that are usually expected to be held by women only. Currently, 19 out of the 56 Special Procedures have never been led by women, including some, like the mandates on torture and on freedom of expression, that have existed for decades.

While the Human Rights Council has recognised that gender balance is a necessary consideration for the appointment of experts to these positions, no formal procedure has been implemented to guarantee it. As a result, women are less likely to become candidates, less likely to be considered as top choices, and less likely to be elected. This affects the right of women to participate and be represented equally in spaces of authority and decision making; it diminishes the legitimacy and impact of the Human Rights Council and these monitoring bodies; and it reinforces stereotypes about the kind of roles women are interested in or able to aspire to.

In this light, the nominations for appointments during the upcoming Human Rights Council session, starting on 6 June – which includes important positions such as the rapporteurship on the human rights of migrants, and the promotion and protection of human rights while countering terrorism – are of great concern. Out of 21 shortlisted candidates, only 8 are women and none have been ranked as the top pick.

“while a shortlist of candidates from one single region would likely cause great controversy, the near-absence of women in the upcoming Human Rights Council nominations is at risk of going quietly unnoticed”

With this practice, the Human Rights Council – the main human rights body of the UN, which has the equal rights of men and women enshrined in its Charter and treaties – is acting against its own principles. The same UN rule that addresses gender balance prescribes that due consideration is given to equitable geographical representation in the special procedures, and this principle is generally respected. Yet, while a shortlist of candidates from one single region would likely cause great controversy, the near-absence of women in the upcoming Human Rights Council nominations is at risk of going quietly unnoticed. This is the equivalent of no one having noticed that a male US President was signing away women’s reproductive rights surrounded by only men. This needs to change: not only is gender parity an equally important issue as balance in regional representation between the UN member states, it is one that the Human Rights Council is long overdue correcting.

Several organizations and initiatives, including the GQUAL campaign, are currently working to fix these imbalances. They have asked that the Consultative Group of the Human Rights Council adopt gender parity guidelines to guarantee that equal numbers of women and men are shortlisted for these positions. However, these Guidelines, which are yet to be adopted, would still not offer a sustainable and binding solution. What the Human Rights Council should do to achieve this is adopt a Resolution that sets clear markers for achieving better gender balance in its appointments, instructs the Consultative Group and the President of the Council to take gender parity into account when selecting candidates, and calls on Member States to develop practices and procedures that promote gender parity. The  Office of the High Commissioner for Human Rights (OHCHR) should support this. It can take further action to advertise open positions, especially targeting women candidates. The OHCHR should also make use of the powers it already has to postpone elections and extend deadlines if the pool of candidates does not contain a sufficient number of women. It needs to set baselines for representative numbers and enforce them.

“Women are disproportionately affected by human rights issues, ranging from refugee rights to climate change. They must have a voice at all levels of discussion that will lead to decisions that impact them directly.”

Failing to do so, will put the UN Human Rights Council’s overall decision-making legitimacy and capacity at risk. It also places the Council fundamentally out of touch with the current times. Women are disproportionately affected by human rights issues, ranging from refugee rights to climate change. They must have a voice at all levels of discussion that will lead to decisions that impact them directly. If we are serious about changing the picture of men making crucial decisions that affect women, we need to ensure women get an equal number of seats at the table.

This post was co-authored by Nani Jansen Reventlow and Maria Noel Leoni. Nani is an Associate Tenant at Doughty Street Chambers and a 2016-2017 Fellow at the Berkman Klein Center for Internet & Society at Harvard University. She is also a strategic advisor for the GQUAL Campaign, an international platform which seeks to promote parity in international tribunals and monitoring bodies. Maria is a Senior Lawyer for the Center for Justice and International Law (CEJIL) and GQUAL Campaign Coordinator.

Looking for women experts? Don’t make it a beauty pageant

Final Phase Digital

1946 – Birth of the UN Commission on the Status of Women, photo credit: UN Photo

This post was co-authored by Almut Rochowanski

Earlier this month, the BBC held its BBC Expert Women’s Day, bringing together “female experts who’d like to appear on air as contributors to BBC programmes”. The event gathered a group of 24 professionals, which included lawyers, scientists, political analysts, entrepreneurs, coders, cultural leaders and sex educators, selected from a pool of 450 applicants for a ‘media familiarisation day”. They were given tips on how to sound natural on air and given the opportunity to experience appearing on camera in a BBC news studio.

Seemingly, this is a well-intentioned effort to diversify sources. However, the way the BBC is going about it makes it seem more like a beauty contest.

This is the latest edition of a programme the BBC launched in 2013. At first glance, it might look like an earnest attempt to overcome the notorious “all-male panel” problem, something the BBC should be applauded for having acknowledged and taking steps to address (even if, in 2012, it was the only major UK broadcaster to refuse signing a pledge to get more women on screen). But, on closer inspection, there are a number of deeply problematic aspects to the initiative. In fact, it is a spot-on illustration of why media organizations suffer from the all-male panel problem to begin with.

The BBC Academy’s call for applications asked women experts to send in their CV, a letter explaining their interest in being on air and a two-minute video of themselves talking about their area of expertise. By having women experts compete to be acknowledged for what they are – experts – this “TV expert” competition puts the onus on women to correct and overcome the discrimination that holds them back. Once again, women are expected to jump through extra hoops to prove that they are good enough to do what men routinely get to do with no questions asked. Women need to not only have the talent and put in the work to become experts on topics like Brexit, terrorism or classical music, but must also submit to a screen test and mentoring in order to be recognized as authoritative voices in their field of expertise.

The screen test that forms part of the application is particularly troubling. Somehow, it doesn’t seem likely that the BBC requires screen tests of the male climate scientists, business experts or lawyers they invite on their programs.  And while the instructions for the video do not mention looks, women are judged on their appearance much more than men, and nowhere more so than in the media. Imagine a female expert on development aid or the music industry considering even for a split second whether she should put on lipstick before recording her video, and it immediately becomes clear how this initiative perpetuates gender discrimination and is self-defeating in its stated purpose.

The competition is based on the lazy and ignorant assumption that women are underrepresented as experts in broadcast media because they have not tried hard enough or because they just do not shine as brightly as their male colleagues whom the media somehow manage to find without them having to answer to a casting call. The same argument is routinely employed to rationalize the low numbers of women on corporate boards, among tenured professors or in government. And yet we know that women are underrepresented in roles of power and prestige because they are overlookeddismissedignoredexcluded and discriminated against.

Our critique isn’t directed at the women who took part in this year’s BBC Expert Women’s Day, or the many more who applied and were not invited. Quite the contrary. These women are obviously very good at what they do, and the fact that they’re ready to put in the extra work and face new challenges illustrates why they have become leaders in their fields. Our point is that they shouldn’t have had to go through a competition like this to be recognised for their expertise and to get a chance to contribute to public discourse.

If the BBC concludes that they have too few female experts on the air, they ought to first take a good, hard look at themselves and figure out where they went wrong. Have they sufficiently questioned their own habits and assumptions? Have they probed their organization’s practices for hidden biases and discrimination? Do terrorism experts always look male in the imagination of the editorial staff? Have they given proper research a try?

Because, really, it is not difficult to find women experts out there. We are literally everywhere. We are at universitieshospitals, research centers and think tanks. We publish booksblog post and articles, we are on LinkedIn and social media, we win prizes and fellowships, we are part of professional networks. In addition, numerous databases have been set up to assist researchers who might be at a loss in identifying women experts for their news coverage. There is The Women’s RoomSheSource, Women Also Know Stuff and The OpEd Project, to name but a few. Having women compete to have their voices heard in a space where their opinions should be sought out as often as those of their male counterparts is not a solution. Rather, by failing to acknowledge and reject the systematic inequalities that women face, this casting call for women experts perpetuates the problem it ostensibly tries to solve.

Almut Rochowanski is a co-founder and coordinator of the Chechnya Advocacy Network. Nani Jansen Reventlow is a human rights lawyer with Doughty Street Chambers and a fellow at the Berkman Klein Center for Internet & Society at Harvard University.

This post has been cross-posted on Medium.

Kenyan court knocks down criminal defamation, safeguards freedom of expression

Efforts to create more space for free expression in Africa have been strengthened by the Kenyan Judiciary. In the case of Jacqueline Okuta & Anor vs. AG & Others, the High Court of Kenya on 6 of February 2017 annulled section 194 of the Penal Code that provides for the offence of criminal defamation. This decision is significant in safeguarding the fundamental rights of Kenyans, particularly in light of the forthcoming general elections. It curtails the misuse of criminal law provisions by political figures to curtail speech they consider unfavorable. Journalists especially have been victims of criminal defamation sanctions for exposing corruption and unlawful activities of public officials.

The harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society”, Judge Mativo of the High Court of Kenya pronounced in his judgment.

The Judge noted that upon promulgation of the Constitution of Kenya in 2010, it was expected that certain provisions in Kenya’s existing laws were to be amended to align them to the letter and spirit of the Constitution. However, seven years later, this expectation had not been met. Relying on regional and international standards on freedom of expression, the Court concluded that criminal defamation is unconstitutional, reasoning that “the chilling effect of criminalizing defamation is exacerbated by the maximum punishment of two years’ imprisonment imposable for any contravention which is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The Court further held that imprisonment as a sanction was not “reasonably justifiable in a democratic society” and that the availability of civil remedies afforded sufficient redress for injury to one’s reputation.

Criminal defamation continues to prominently feature in Penal Codes of African countries especially in East Africa. The High Court of Kenya is the first court in the region to declare that criminal defamation violates the right to freedom of expression.

The case in Kenya arose from the indictment of two petitioners, Jacqueline Okuta and Jackson Njeru, who were each charged with criminal defamation for allegedly publishing defamatory statements on their Facebook account “Buyer beware-Kenya.” The case complaint was based on a post in which the complainants were pictured and named as being wanted for illegal possession and handling of property, and misuse of a telecommunication device. The petitioners then sought to challenge section 194 of the Penal Code before the Constitutional and Human Rights division of the High Court, arguing that the provision was unconstitutional and violated the right to freedom of expression.

A key question is what impact the decision from Kenya’s High Court will have in East Africa, and possibly in the wider African region. The judgment follows and references the landmark decision of the African Court on Human and Peoples’ Rights in the case of Lohé Issa Konaté v. Burkina Faso, but goes further than that Court’s finding that criminal defamation laws should only be used as a last resort when there is a serious threat to the enjoyment of other human rights in exceptional circumstances such as hate speech and incitement. It does so by finding that “any continued enforcement of criminal defamation laws by the government would be a violation of the fundamental and constitutionally guaranteed right to the freedom of expression.”

This corresponds with the minority dissenting opinion in the African Court case, in which 4 of the 10-judge bench found that the “’State’s duty to enforce collective security, morality and common interest’ cannot justify the criminalization of expression of speech by way of criminal defamation laws of any kind, whether punishable by incarceration or not. Access to civil action, civil sanctions together with specifically defined crimes for safeguarding national security, public peace and the common interest should be sufficient.”

The Kenyan case highlights the potential of strategic litigation as an effective tool in bringing about social change where lobbying efforts have failed. It reinforces the efforts of other national courts in Africa like Zimbabwe that have decriminalized defamation twice, once under its previous and once under its current constitution. Other countries in the region, such as Ghana, abolished criminal defamation laws through law reform. This is in line with the continental campaign to decriminalize defamation by the African Union Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Efforts to do the same in East Africa have so far been without result, especially where countries like Uganda previously upheld the constitutionality of criminal defamation laws on grounds that they are “relevant” in protecting reputation.

cbs-radio-journalist-ronald-ssembuusi-middle-leaving-court-with-hrnj-uganda-lawyer-catherine-anite-left

Journalist Ronald Ssembuusi (middle) leaving court with lawyer Catherine Anite (left). Photo courtesy of HRNJ-Uganda.

A challenge to Uganda’s criminal defamation laws is currently pending before the East African Court of Justice. The case, brought on behalf of the now-deceased Ugandan journalist Ronald Ssembuusi, argues that his conviction to a prison sentence of one year was in violation of Uganda’s obligations under the East African Community Treaty. The matter has garnered much interest from the international community, with not only the African Union and United Nations Special Rapporteurs on freedom of expression having requested to make amicus submissions in the case, but also a coalition of 20 African and international NGOs. It will be interesting to see what impact the Kenyan judgment might have on the case. If the East African Court rules in favor of Ssembuusi, the judgment will positively impact all East African Community countries, which include Kenya, Tanzania, Uganda, Rwanda Burundi and South Sudan.

This post was co-authored by Catherine Anite, a human rights lawyer from Uganda and part of the legal team litigating the Ssembuusi case. Nani Jansen Reventlow was lead counsel on the Konaté case. This post has been cross-posted from Harvard’s Cyberlaw Clinic blog.

‘Fake news’ highlights much bigger problems at play

Hardly a day goes by without another story on fake news. With the excessive coverage dedicated to it globally, you would think it is something new. But ‘fake news’ is not new and the ways we try to combat it only highlight our inadequacies in dealing with much bigger problems.

As the US Presidential Election progressed, public fixation on the term grew and so did ambitions to try and combat. In Germany, one suggested approach has been to legislate against it, forcing social media companies to delete fake news posts or face 500,000 EUR fines. Sweden also threatened to initiate legal action against Facebook unless it started cracking down on fake news.

That might sound appealing to some. By simply outlawing fake content, we could have a news ecosystem where the information published is guaranteed to be true. As it turns out, legislating against fake news is a really bad idea. Several countries tried it back when it was called ‘false news’, a label which has served for years as a handy means of pretext for many a despot seeking to silence the opposition.

The main problem with legislating against fake news is that definitions of what constitutes fake (or false) news will generally be overly broad, leaving them open to interpretation and abuse by authorities. This puts at risk the challenging of viewpoints, which lies at the heart of a democratic society. They know that in Zambia, where a national court declared its false news law unconstitutional in 2014. And they know it in Canada, Uganda, Zimbabwe, and the United States, where supreme courts have all held that false news provisions are incompatible with the right to freedom of expression.

A softer approach to combatting fake news was announced by Facebook in December last year. It makes use of third-party fact checking organizations, which will look into user-submitted reports of fake news. This is part of a package of other projects including tackling news illiteracy and improving the skills of journalists. Whether it will be successful is hard to say, but Facebook’s initiatives certainly represent a more constructive approach than simply banning fake news. Unfortunately, they are still merely a band-aid on a much bigger ailment: people’s lack of trust. As it turns out, labeling fake news stories as fake is unlikely to stop people from believing they are true. Why? Because people do not trust the ‘experts’ who make this call for them.

And why should they? In January, the European Union task force East StratCom, warned that Russia is seeking to influence the outcome of several key elections in Europe this year with ‘enormous, far-reaching (…) disinformation campaigns.’ Amongst 2,500 fake news stories uncovered by the task force are conspiracy theories over who shot down Flight MH17 over Ukraine to claims that Sweden had banned Christmas lights for religious reasons and that the EU was planning to ban snowmen as “racist”. By spreading vast amounts of conflicting messages, these disinformatzya campaigns seek to persuade audiences that there are so many versions of events that it is impossible to find the truth, impossible to find information one can really trust. The point is to pollute the news ecosystem to make readers question everything and to undermine the very notion of truth itself.

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In the digital age, we communicate on platforms that resemble medieval marketplaces: everyone is shouting and no one seems able to find common ground with those across the aisle. Photo: Francis McKee, CC BY 2.0

People’s difficulties with trusting information is a much bigger problem than fake news. It is also a central premise of the digital age as the “Gutenberg Parenthesis” theory highlights, arguing that the digital age partly represents a return to medieval ways of communicating, before Gutenberg’s movable type facilitated easy printing and revolutionised the world. The new printed word had a different authority that oral communication did not possess. But then the internet happened and we are now communicating through platforms that resemble marketplaces where everyone is shouting, and where those who want to undermine their opponents can simply hire an army of trolls to do the work for them.

Labelling content as fake news may help some to navigate the ecosystem of news, but it represents a shallow response to much larger underlying problems. Legislating against fake news may make its controversy disappear for a moment, but has a potentially chilling effect on freedom of expression. Neither approach will help people figure out whom or what to trust. There are no easy or quick fixes, but if the ambition is to address fake news in all its forms, there is a need to focus on the underlying issues rather prescribing symptomatic treatment. It will require us to go beyond scratching the surface of the deeper problems of our own bias and inability to reach across the aisle and find common ground with the people we disagree with.

This post was co-authored by Andreas Reventlow, Programme Development and Digital Freedom Advisor at International Media Support who works with journalists and human rights defenders to promote standards of professional journalism, digital security and internet freedom. It has been cross-posted from the Berkman Klein Center collection on Medium.

The European Court of Human Rights and Access to Information: clarifying the status, with room for improvement

On 8 November 2016, the Grand Chamber of the European Court of Human Rights handed down a much-anticipated judgment on the right of access to information. While the Court was clearer and firmer than it had ever been before on the status of the right to access information as part of the right to freedom of expression guaranteed by Article 10 of the European Convention, it stopped short of acknowledging access to information as a fully-fledged right under the provision.

The case of Magyar Helsinki Bizottság v. Hungary concerned an information request that had been made by the Hungarian Helsinki Committee (HHC), a Budapest-based NGO that monitors and conducts advocacy on human rights. The request was addressed to a number of police stations in the country, asking that they provide the names of public defenders appointed in their area and the number of cases that had been assigned to each of them. This information was requested under Hungary’s 1992 Data Act, which contained a provision on access to information. The information was requested in the context of the HHC’s investigation into the quality of defence work done by public defenders. Two police stations refused to provide the information, and these refusals were challenged by HHC before the Hungarian courts. The Supreme Court found that, while the implementation of the constitutional right to criminal defence was a State task, the subsequent activities of the public defenders was a private activity, resulting in their names not being subject to disclosure under the Data Act. The matter was then taken to the European Court, which relinquished the matter to the Grand Chamber.

The Grand Chamber’s decision was much-anticipated as the Court had been slowly moving from an apparent outright rejection of the right to access information under Article 10 ECHR (Leander v. Sweden) to gradually acknowledging that, under certain circumstances, a limited right to access information falls within the right to freedom of expression as protected by that provision (Társaság a Szabadságjogokért v. Hungary). However, in the wake of this trajectory, the Court had left behind a legal quagmire that the Grand Chamber still had to navigate carefully in its judgment. It was hoped that the Grand Chamber would finally follow the line already taken by the Inter-American Court and the UN Human Rights Committee, and acknowledge that Article 10 comprised a self-standing right to access information. However, as much as the Grand Chamber took a significant step forward in its access to information jurisprudence, it was constrained by what had gone before.

What had gone before: a legal quagmire

There were a number of factors derived from the Court’s own case law, and the Convention itself, that had together reinforced the position that Article 10 ECHR did not provide for a standalone right of access to information held by public authorities.

  1. The wording of Article 10 itself: unlike its counterparts under the International Covenant on Civil and Political Rights (Article 19) and the Universal Declaration on Human Rights (Article 19), Article 10 ECHR was not drafted to include an explicit reference to the freedom to “seek” information. As the right to access information was not explicitly apparent from the wording of Article 10, it was left for the Court to consider whether and to what extent such a right could be viewed as falling within the provision.
  2. The Leander Principle: in Leander v. Sweden, the Court had held that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that “others wish or may be willing to impart to him.” The Grand Chamber recognized that the Court’s jurisprudence had extended this principle to cases where one arm of the State had recognized a right to receive information (e.g. by a court judgment) but another arm of the State had frustrated or failed to give effect to that right (see Sdruženi Jihočeské Matky v. the Czech Republic). Article 10 could, therefore, only be relied on in cases where the State prevented an individual from accessing information that another person was willing or required to disclose. It could not be relied on more generally to establish a right of access to state-held information.
  3. No positive obligation on States: the Court had found that Article 10 did not confer on a State positive obligations to collect and disseminate information of its own motion (Guerra and Others v. Italy).

These factors effectively created obstacles for the Grand Chamber when considering the status of the right to access information under Article 10 ECHR, and hindered its ability to keep up with the international community on the issue.

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