As we pointed out last week, many international indicators show a lack of improvement in the protection of freedom of expression across the globe. Recently the UN and several other international organisations produced an updated Joint Declaration calling for Universal Freedom of Expression with assistance from Article 19 and the Centre for Law and Democracy. Kailey Fuller-Jackson, an MSc candidate at the London School of Economics argues that this declaration leaves too much room for impinging on freedom and will be of limited use in countries where national level protections are not already in place.
On 6 May, 2014, Frank La Rue, United Nations Special Rapporteur on Freedom of Opinion and Expression (FoE), in conjunction with the African Union, the Organization of American States, and the Organization for Security and Cooperation in Europe released a new Joint Declaration on the Universality and Right to Freedom of Expression. This document was anticipated, given the Joint Declarations produced regularly on Freedom of Expression since 1999. Each year the declaration expresses specific values and foci, with last year’s supporting the digital terrestrial transition.
2013 v. 2014
|2013: Digital Terrestrial Transition||2014: Universality of Freedom of Expression|
|An emphasis on the inherent need for the free flow of information as a measure of democracy and social participation||An emphasis on the core value of FoE as a human right that is essential to cultural, philosophical, and religious traditions|
|Concern over commercial and political interests dominating policy-making discussions to the impediment of the digital transition||Concern over justifications of violations to FoE such as cultural and traditional values, moral or religious beliefs, or threats to public order|
|Caution over the possibility of the digital transition exacerbating the concentration of ownership and control in broadcast media, and potential to increase the digital divide if poorly executed||Highlighting the ability of FoE violations to further marginalise minorities and act as a warning for larger human rights and security issues|
|Policy-making towards digital terrestrial transition must be strategized to maximise public interest and be implemented by a third-party non-biased regulatory body||Recognition of a state’s right under international law to restrict FoE under certain cultural or traditional circumstances (Section 1D), but maintains this should not unduly impose on human rights|
|State policies and licensing should promote media diversity and encourage the growth of community/local broadcasting services||A call for the abolition of specific types of laws that are stated to not be excused by cultural or traditional circumstances (Section 1F)|
The 2013 document gave specific recommendations for how the digital transition should be executed related to licensing by independent regulatory bodies and promoting local services by allowing for them on digital networks. The 2014 Declaration, however, outlines a vague list of recommendations that attempts to be applicable to a broad range of contextual circumstances.
The 2014 Declaration recommendations
The 2014 Declaration acknowledges that there are legitimate aims for the restriction of FoE on the basis of traditional and cultural values, and that restrictions can be justified by factual situations. It states that there are three types of laws that do not meet these exceptions:
- Laws which protect religion from criticism and prohibit expressing dissenting religious beliefs
- Laws which prohibit expression of minority issues, those who have undergone historical discrimination or violations of personal dignity
- Laws which give protection against criticism of officials, institutions, historical figures, national, or religious symbols
Rather than giving policymakers specific ideas of what they should do proactively to protect freedom of expression as the 2013 one did, the more recent declaration accepts that states will on occasion try to limit this freedom and tells policymakers what they should not do to avoid going too far. We have seen states that are all too willing to give legal basis to what could be considered serious threats to freedom of expression, so how effective can it be to suggest rather fuzzy lines that should not be crossed?
The contextual framework of Turkish delight
Perhaps one of the most intriguing cases in which soft-governance tools such as these declarations could play a role occurred earlier this year in Turkey, where Twitter and YouTube bans were imposed by the government, then lifted following an order from the country’s highest court. Twitter was initially blocked due to anonymous leaks suggesting corrupt deals among government officials, while YouTube was said to present a security risk when audio recordings of government and military officials planning action in Syria were leaked. The Turkish government rejected two lower court orders to lift the ban, claiming the leaks were a tactic used by a rival politician to unseat the government.
As a member state of the Organization for Security and Co-operation in Europe (OSCE) and a signatory of several international agreements on human rights – most notably in this case the Universal Declaration of Human Rights, which includes FoE in Article 19, and the European Convention on Human Rights, which covers it in Article 10 – Turkey is bound to uphold these standards. The government’s resistance to lift the Twitter and YouTube bans instead reveals the limits of such international soft-governance mechanisms. Despite strong international civil society reactions calling on such international instruments and standards, in the end it was the country’s Constitutional Court upholding the national constitution that succeeded in overriding the YouTube ban.
What then of the 2014 Joint Declaration?
Turkey’s predicament has demonstrated the potential for constitutional rights to override political interests, but what happens in states where the legal environment or political cultures do not enable this type of top court ruling? What about states whose national constitutions lack the clarity that Turkey’s had on this issue? In some national contexts, where domestic protections are lacking, an international declaration without specific instructions that tries to accommodate varied contextual circumstances will fail as a governance tool, falling victim to cultural values or political interests.
In effect, the 2014 Declaration does not provide strong guidance as to what policymaking priorities should be, and hardly creates an image of ‘universal’ FoE that would be useful for what Alison Harcourt would label soft-governance. Unfortunately, it lacks teeth and is too forgiving of qualifications on FoE. The future of universal freedom of expression is unlikely to see progress with this Declaration.
This post gives the views of the author, and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics.