State of Democracy, Human Rights and the Rule of Law in Europe 2016
Strasbourg, 02.05.2016 – On the eve of Press Freedom Day on 3 May, Council of Europe Secretary General Thorbjørn Jagland called upon the 47 Council of Europe member states to make sure that their national legislation on defamation does not lead to self-censorship of the media and does not weaken public debate.
“We are witnessing worrying trends of some governments misusing defamation lawsuits for political purposes, arbitrary application of defamation laws leading to imprisonment of journalists and attempts to roll-back legislative reforms decriminalising defamation. These are among the findings of my Report [full report] on the State of Democracy, Human Rights and the Rule of Law in Europe 2016”, said the Secretary General.
“It is essential for democracy that the media carry out their work scrutinising and criticising those in power. In performing this watchdog function, they must benefit fully from the guarantees of the European Convention on Human Rights within the limits it establishes. Defamation laws and their implementation should not have a chilling effect on freedom of expression”, he added.
“When drafting or amending legislation, governments should take into account that the European Court of Human Rights has stressed that prison sentences are only compatible with the Convention in very exceptional cases, notably when other fundamental rights have been breached, for example in the case of hate speech or incitement to violence. It is also crucial that sanctions for defamation [more on] foreseen in civil law are proportionate and cannot be abused to silence the media”, he stressed.
Defamation has progressively been de-criminalised in most European countries and wherever it is still criminalised, sanctions are seldom applied. However, in recent years there has been a sharp increase in the number of lawsuits and excessive awards of damages, often higher than the fines imposed under criminal law.
In a set of Guidelines to protect journalism and ensure the safety of journalists and other media actors adopted earlier this year, the Council of Europe´s Committee of Ministers asked member states to review domestic laws and practices concerning media freedom, including the way defamation is addressed, to ensure they comply with the European Convention on Human Rights. [Source]
Freedom of Press online
√ Without genuine freedom of expression and free media, there can be no safeguards against the abuse of power.
√ Close to half of member states do not satisfactorily guarantee the safety of journalists and the situation has deteriorated in the last year, with an increase in violence against journalists, including very serious threats
such as physical attacks and destruction of journalistic property.
√ Incidents of prosecutions and criminal investigations of journalists have been registered even in countries regarded as “established democracies” with exemplary human rights protection. A rising problem is the pressure on journalistic sources, both directly and as a result of targeted surveillance of journalists.
√ Most member states have sufficient protection against arbitrary use of the law. The abusive use of defamation laws remains problematic and prison sentences for defamation are still imposed in some member states. In a number of countries, the law still gives enhanced protection to politicians and public officials, in contradiction to the European Court of Human Rights (the Court) case law.
√ Several countries saw decriminalisation processes being rolled back and criminal defamation laws reintroduced. Among positive developments, the report refers to fewer instances of the use of hate speech and blasphemy laws and abolishment of the blasphemy laws in two countries.
√ Interference by owners in media content is a major issue. Instances where media outlets have been brought under governmental control have been recorded. Another concern is the use of government funding and government advertising as a tool to influence media.
√ Interference with media regulators and the governing bodies of public broadcasters was reported. The risk to the financial independence of the public service broadcaster exists in many member states. The financial position of journalists is weak; many journalists earn below-average salaries, making them vulnerable to pressure. In a small number of countries, the state controls most media outlets and censors content both offline and online.
√ The situation with regard to media pluralism and diversity is assessed as unsatisfactory in 26 member states. New restrictions on foreign investment in the media have been introduced in one member state. Media concentrations are considered as threatening independent regional media and thereby limiting citizen participation.
√ Some of the most serious concerns with regard to the freedom of expression on the Internet relate to cases in which the blocking, filtering and taking down of Internet content lack legal basis, or are arbitrary. The majority of member states do not have specific comprehensive laws regulating these issues.
√ Most member states provide for the possibility of judicial review, however, the lack of case law often makes it difficult to guide the proportionality of assessments. Concerns have been raised about the administrative blocking of websites in the absence of judicial control.
√ The large majority of member states limit the liability of intermediaries to the cases in which the intermediaries were aware of the illegal content they were transmitting and did not act accordingly.
√ draft a set of common standards for all member states on blocking and filtering of Internet sites, using, inter alia, the findings of the 2015 study on blocking and filtering of Internet sites, to be presented to the Committee of Ministers by the end of 2016;
√ establish a platform for governments, major Internet companies and representatives’ associations on their respect for human rights online, including on measures to protect, respect and remedy challenges and violations to them.
√ launch, before the end of 2016, a process to codify international standards, good practices and guidance relating to “mass surveillance”, in the context of the right to privacy and freedom of expression.
√ during protests request the Venice Commission to update its 2010 Opinion on the freedom of assembly, including the guidelines on securing status for journalists during protests. Regulatory authorities, public service broadcasting and media concentration [full proposed actions and recommendations]
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