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The cover is a draw ing entitled Des Schreibers Hand (The Writer’s Hand) by the Germ an author and Nobel prize laureate (1999) Günter Grass. He has kindly let our O ffice use this as a label for publications of the O SCE Representative on Freedom of the Media. The draw ing w as created in the context of Grass’s novel Das Treffen in Telgte, dealing w ith literary authors at the tim e of the Thirty Years War.

© 2005 O rganization for Security and Co-operation in Europe (O SCE) O ffice of the Representative on Freedom of the Media Kärntner Ring 5-7, Top 14, 2. DG, A-1010 Vienna Telephone: +43-1 512 21 450 Telefax: +43-1 512 21 459 E-m ail: pm -fom @osce.org w w w.osce.org/fom The view s expressed in this publication represent those of the authors and contributors and do not necessarily reflect the official position of the O SCE Representative on Freedom of the Media. Design: WerkstattKrystianBieniek, Vienna Printed in Austria


REPRESENTATIVE O N FREEDO M O F THE MEDIA

Freedo m and Respo nsibility Yearbook 2004

Vienna 2005


Co ntents

Solom on Passy Preface Miklós Haraszti Introduction

I.

9 11

Freedo m o f Info rmatio n Peter Noorlander Freedo m o f Info rmatio n and the Media

17

Laszlo Majtenyi Freedo m o f Info rmatio n – Experiences fro m Eastern Euro pe

29

II. Freedo m o f the Media o n the Internet Arnaud Am ouroux and Christian Möller 2004 – The Internet Year fo r the RFO M Morris Lipson In the Name o f Pro tecting Freedo m o f Expressio n: Rejecting the Wro ng Rule fo r Liability fo r Internet Co ntent

45

53

Cathy Wing An Intro ductio n to Internet Literacy

63

Gus Hosein O pen So ciety and the Internet: Future Pro spects and Aspiratio ns

77

III. Libel and D efamatio n Law s Miklós Haraszti and Ilia Dohel Libel and Insult Law s: Where We Stand and What We Wo uld Like to Achieve

101


Toby Mendel The Case against Criminal D efamatio n Law s

105

Ronald Koven Ho w D angero us Archaic Insult Law s Can Be

113

IV. View s and Co mmentaries Dardan Gashi The Media Situatio n in Ko so vo

119

Media Vo ices Speak O ut abo ut Libel and Freedo m o f Info rmatio n in Central Asia

125

Extracts fro m the First So uth Caucasus Media Co nference

133

Miklós Haraszti “Berlin Speech” at the Co nference o n Anti-Semitism

141

V. O verview – What We Have D o ne Mandate of the O SCE Representative on Freedom of the Media

147

Repo rts and Statements to the O SCE Perm anent Council and other O SCE fora by Freim ut Duve •

Statement on Russia, Ireland and Azerbaijan at the Permanent Council of 23 O ctober 2003 (Under Current Issues)

151

Regular Report to the Permanent Council of 11 December 2003 by Freimut Duve

153


Speaking notes for Jutta Wolke, the Acting Head of O ffice of the O SCE Representative on Freedom of the M edia, for the M eeting of the O SCE Parliamentary Assembly in Vienna on 19-20 February 2004

160

by Miklós Haraszti •

Inaugural Statement at the M eeting of the Permanent Council of 11 M arch 2004 by M iklós Haraszti

163

Statement on Armenia at the Permanent Council of 1 April 2004 (Under Current Issues)

165

Statement on the M arch 2004 Kosovo Events at the Permanent Council of 22 April 2004 (Under Current Issues)

166

Report on the Role of the M edia in the M arch 2004 Events in Kosovo

168

N on-paper on Anti-Semitism in the M edia for the Berlin Conference on Anti-Semitism, 29 April 2004

188

Regular Report to the Permanent Council of 8 June 2004

193

Assessment Visit to Ukraine: O bservations and Recommendations

200

Statement on Belarus at the Permanent Council of 9 September 2004 (Under Current Issues)

213

Regular Report to the Permanent Council of 16 September 2004

215

Report on Russian M edia Coverage of the Beslan Tragedy: Access to Information and Journalists’ Working Conditions

223

M edia Freedom Violations in Belarus in 2004

238

Annual Human Dimension Implementation M eeting (HDIM ) Speaking Points, Warsaw 6 O ctober 2004

249

Regular Report to the Permanent Council of 16 December 2004

254

Assessment Visit to M oldova: O bservations and Recommendations

266

• •


Jo int D eclaratio n by O SCE, UN and O AS International Mechanism s for Prom oting Freedom of Expression, 6 Decem ber 2004

279

Pro jects 2004 •

Guaranteeing Media Freedo m o n the Internet Expert Seminar, 30 June 2004, Vienna “The Recipes”, Recommendations of the O SCE Representative on Freedom of the M edia from the Amsterdam Internet Conference, 27–28 August 2004

283

284

Sixth Central Asian Media Co nference 23-24 September, Dushanbe Dushanbe Declaration on Libel and Freedom of Information 294

First So uth Caucasus Media Co nference 25-26 O ctober, Tbilisi The Tbilisi Declaration on Libel and Freedom of Information 296

Legal Assistance in 2004

300

Libel and Insult Law s: A Matrix o n Where We Stand and What We Wo uld Like to Achieve June 2004 – M arch 2005

301

Visits and Interventio ns in 2004

303

Publicatio ns

315

Media NGO s in the O SCE Regio n

318

The Autho rs

321


Solom on Passy Preface

There w as never any doubt that m edia are an inseparable part of our daily routine. By raising public aw areness, questioning beliefs and com prehensions, casting light on uncertainties, serving as a m ulticultural forum for the exchange of ideas and opinions, m edia have proven them selves to be an influential constituent and focal tool of dem ocracy – the very essence of the contem porary connotation of know ledge and freedom . It takes years, decades, som etim es even centuries for a society to live up to the liberties and responsibilities of dem ocracy. It com es as no surprise that such processes are som etim es left incom plete, due to the fact that, from both a political and social point of view, patience and unw avering determ ination are often not enough. Success is seldom the result w hen people are deprived of their basic hum an right, nam ely the freedom of expression. The revolutionary m eans of inform ation exchange have influenced and therefore m oulded our w orld to a great extent. The very nature of contem porary com m unications provides unlim ited possibilities in term s of com m unicating ideas and opinions to continents, regions, countries, societies, but m ost im portantly – to the individual. With great pow er com es great responsibility. The sky is the lim it, people often say, but how do w e handle that? O n the one hand freedom of expression and the m edia m ust not be lim ited. We have to be careful not to over-regulate the free exchange of ideas and inform ation. And yet, w e m ust not allow abuse by those w ho w ish to spread hatred and intolerance. The responsibilities, evoked by the freedom of m edia, m ust be shouldered by all of SO LO MO N PASSY

9


us – by governm ents, industry, NGO s, societies – at both a national and an international level. The contem porary standards in the m edia m ust be flexible in order to respect different approaches, but also stern enough to effectively oppose attem pts of abuse and m isconduct. To a certain extent the best approach is self-regulation through developing codes of conduct. How ever, I am not suggesting that there is no need for clear m oral guidelines about how m edia should serve society and, m ost of all, perform their param ount duties of prom oting, supporting and protecting dem ocracy in all its form s. In that respect, w e share a deep com m itm ent to the core O SCE principles, but w e also have to acknow ledge that freedom does not suggest an unobstructed right to spread hatred, lies and abuse, w hich could harm people and even destabilize our societies. The O SCE has alw ays paid great attention to the m edia and has launched a num ber of program m es aim ing to establish and develop free and independent m edia outlets. Education w ith the focus on hum an rights stood high on the agenda of the Bulgarian Chairm anship in 2004 and w e have to bear in m ind that m edia have a very significant role in this respect. With pow er and freedom com es great responsibility and the m edia m ust also assum e their fair share by perform ing their duties in favour of hum an rights, fundam ental freedom s, and long-term dem ocratic society interests. I avail m yself of this opportunity to w ish the O SCE Representative on Freedom of the Media Miklós Haraszti the best of fortune and success in his essential endeavour to preserve and further develop w hat the O SCE has achieved in term s of freedom of expression, and its corollary, freedom of the m edia.

Dr. Solomon Passy is M inister of Foreign Affairs of the Republic of Bulgaria and was Chairman-in-O ffice of the O SCE in 2004. 10

PREFACE


Miklós Haraszti Introduction In March 2004, I w as appointed O SCE Representative on Freedom of th e M edia by th e 55 participatin g States. I replaced the founder of this O ffice, Mr. Freim ut Duve of Germ any, w ho fought censorship for m any years. I inherited an institution that is dedicated to prom oting freedom of expression and w hich has developed a unique system of m onitoring press freedom violations. While I took on board this early w arning system , I w as eager to use the inform ation w e obtained to advise our participating States on how to better com ply w ith the free speech standards to w hich they have all com m itted them selves, uniquely am ong the regional security organizations of the w orld. D urin g m y first year of ten ure, I issued assessm en t reports, m ostly after personally visiting several countries. We prepared our reports not in order to point a finger at the States concerned, but to offer practical, clear and future-oriented recom m endations on how to im prove the situation and the law s. We did not consider any of the participating States to be exem pt from deficiencies. In fact, w e tried to provide the governm ents of the countries w here w e intervened or visited w ith tips on how to m ake their life easier. Let’s face it: restricting press freedom does not m ake the political situation m ore secure; on the contrary, it leads to instability and som etim es conflict. Free m edia are not only a reflection of a good dem ocracy but also foster the security and co-operation of all people living under that jurisdiction. O ur m ain m andate concerns governm ent behaviour vis-àvis the press, but w e also did not hesitate to try and im prove the quality of the press. O ur Kosovo report about the events in March 2004 and the help w e offered to journalists to form M IKLÓ S H ARASZTI

11


self-regulating bodies are tw o exam ples. How ever, w e m ade it clear that freedom of the press m ust not be treated as an exchange item for quality of journalism ; w hile contrarily, freedom is a precondition for quality. Where the press is controlled by the governm ent, quality journalism can be born only in opposition to that control, if at all. The only task of the State in this respect is to exercise self-restraint, and provide all the freedom s the press needs in order to develop. Pluralism of m edia ow nership is the best breeder of quality. Governm ental self-restraint w as the gist of all our recom m en dation s to coun ter th e m an y troubles of our region , w hether this w as the lack of pluralism in the broadcasting scene; the failed transform ation of the state-ow ned broadcaster into independent public institutions; the adm inistrative discrim inations used against the non-governm ental press; or the lingering (or even com eback) of taxpayer-funded governm ent press in m any of the O SCE nations. Media dem ocratization m eans the full transfer of ow nership and custody of the press from the State to civil society. That is a civilization-long process that dem ands innovation and adjustm ent from all three players – governm ent, society and the press. Encouraging the learning process w as our forem ost preoccupation. As w e have found out, today’s freedom of the m edia is facing not only new challenges, but also new dangers. The Internet, w ith its grow ing role as a global m edium for exchanging ideas, is a case in point. It connects us w ith all corners of the w orld. For this very reason, the presence of “bad” content in our global public space is now m ore striking. Especially after the attacks of 11 Septem ber 2001, the w orld has tried to find m ore efficient w ays to fight terrorism . It has become less tolerant to both democratic extravagancies and dictatorial platitudes. In fact, a rise in hate speech-fuelled incidents has show n us that poisonous intolerance is still very much alive. 12

INTRO DUCTIO N


But instead of helping civil society to fight “bad” content and utilizing capabilities of the Internet itself, it is the freedom of the global public space that is now being threatened by overly zealous regulators. O ld and new dem ocratic governm ents, Internet service providers, and even som e of the gigantic search engines that bring the Web to our fingertips, are ready to forget about the classic freedom s of the m edia. I had to explain on m any occasions, and in our M edia Freedom Internet Cookbook, that the various new m edia types of the Internet deserve the sam e handling the classic press has obtained over the centuries. You w ill find in the chapters of this Yearbook accounts of all these troubles as w ell as the results to date of our advocacy of full decrim inalization of libel and defam ation in our region. I hope the Yearbook w ill be a source of useful inform ation and good reading for you. I also hope that you w ill provide us w ith feedback.

M IKLÓ S H ARASZTI

13


I. Freedo m o f Info rmatio n Peter Noorlander Freedo m o f Info rmatio n and the Media László Majtényi Freedo m o f Info rmatio n – Experiences fro m Eastern Euro pe


Peter Noorlander Freedo m o f Info rmatio n and the Media

The right to freedom of expression and inform ation is of fundam ental im portance to dem ocracy and to the protection of hum an rights. A society w here the flow of inform ation is inhibited cannot call itself a dem ocratic society. As the United Nations General Assem bly put it in its very first session, freedom of inform ation – understood as the free flow of inform ation in its broadest sense – is “the touchstone of all the freedom s to w hich the UN is consecrated.”1 Freedom of expression as protected under international law guarantees the right of everyone to im part, receive and seek inform ation.2 In lay term s, this translates to freedom of the m edia, the right to express oneself freely and receive inform ation from anyone, and the right to access inform ation held by public bodies. The latter is com m only referred to as “freedom of inform ation”. These rights are closely intertw ined and depend on each other for their im plem entation. In this essay, I w ill review the strong links betw een freedom of the m edia and freedom of inform ation; and I w ill argue that international law now requires States to take steps to m ake freedom of inform ation a reality for everyone. Freedom of Information and the Media in Practice. It is trite to note that inform ation is the lifeblood of the m edia. Without inform ation, it w ould be im possible for the m edia to publish anything – let alone the kind of public interest stories for w hich it is held in such high regard. 1

UN General Assem bly Resolution 59(1), 14 Decem ber 1946.

2

See Universal Declaration of Hum an Rights, UN General Assem bly Resolution 217A(III), adopted 10 Decem ber 1948, Article 19.

PETER N O O RLANDER

17


What is m ore: journalists need not just any inform ation; they need good, reliable inform ation, particularly w hen investigating issues that relate to the functioning of the governm ent or its officials. In order to perform its role of “w atchdog” of dem ocratic society, the m edia needs access to docum ents and inform ation at the heart of governm ental functioning: not just the text of legislation and regulations, but budgetary inform ation, policy papers, correspondence w ith contractors, and inform ation relating to health and the state of the environm ent, to nam e but a few things. Absent such access and journalists cannot effectively scrutinize governm ental action; they w ould be condem ned to rely on “leaked” docum ents, secondhand inform ation or even rum ours, laying them selves open to defam ation suits or other legal threats along the w ay. Freedom of inform ation is crucial to the m edia in other w ays, too. The lack of a legal access to inform ation regim e allow s governm ents to dom inate the flow of official inform ation. If there are no enforceable access law s or regulations, governm ents can choose w hich inform ation to release and, alm ost as im portan tly, w h om to release it to. It is n ot unknow n for governm ents not only to rew ard those m edia that provide sym pathetic coverage, but also to “punish” critical and opposition m edia by refusing to provide it w ith inform ation.3 In such a political clim ate, a free m edia cannot exist and dem ocracy flounders. Freedom of inform ation law s are currently in effect in som e 60 countries around the w orld,4 and journalists in these countries use the law s in their everyday w ork – and they often take it for granted. Examples abound of stories on issues of public interest that w ould not have been published w ithout freedom of information. In the United States, w here access to inform ation has been around since the 1960s, journalists using freedom of inform ation law s have been able to break stories on such diverse topics as poor dam m aintenance w hich had 18

FREEDO M

O F INFO RMATIO N


resulted in the death of dozens of people;5 use of the death sentence;6 and Gulf War syndrom e.7 In 2002, using the Freedom of Inform ation Act, the Washington Post produced a feature story detailing how the Reagan and Bush I adm inistrations had authorized the sale to Saddam Hussein of poisonous chem icals and deadly biological viruses, including anthrax and bubonic plague. The docum ents obtained by the Washington Post show ed that Donald Rum sfeld, the current US Defense Secretary, had travelled regularly to Iraq at a tim e w hen Iraq w as using chem ical w eapons in defiance of international law.8 O ften, the m edia in countries w here legislation has only recently been enacted are particularly active in pursuing inform ation that has previously rem ained hidden from public view. In the United Kingdom , for exam ple, w hose Freedom of Inform ation Act only cam e into force in January 2005, im portant inform ation has been obtained by the Financial Times concerning the crash of the national currency in 1993 that w ould otherw ise have rem ained hidden.9 Journalists have also obtained docum ents show ing that British soldiers tortured Mau Mau rebels in Kenya in the 1950s;10 and official correspondence of governm ent m inisters w ith the m edia m ogul Rupert Murdoch, w ho w as prom ised that he w ould be able to bid for a UK television channel.11 In Bulgaria, a country w hose freedom of 3

For various exam ples of this, see FO I and the M edia in Armenia, Azerbaijan and Georgia (London: ARTICLE 19, 2005).

4

Putting an exact figure on the num ber is difficult because, first, the num ber is constantly grow ing, and, second, som e countries (notably Zim babw e) have enacted law s that carry the nam e of freedom of inform ation but that in reality are tools for censorship.

5

Tribune-Dem ocrat, Johnston, Pa., 19-20 March 1995.

6

Tribune-Review, Greensburg, Pa., 11-12 Decem ber 1994.

7

See <http://rcfp.org/courtaccess/examples.html> for some “everyday” examples.

8

“U.S. Had Key Role in Iraq Buildup”, Washington Post, 30 Decem ber 2002.

9

“Secrets of Black Wednesday”, Financial Times, 10 February 2005.

10 “Arm y tortured Mau Mau rebels in 1950s”, The Guardian, 5 February 2005. 11 “Files show extent of Murdoch lobbying”, The Guardian, 3 January 2005.

PETER N O O RLANDER

19


inform ation law w as adopted in June 2000, journalists have been able to obtain detailed inform ation on such m atters as the term s of privatization agreem ents and the fulfilm ent of contractual obligations.12 In Jam aica, freedom of inform ation legislation cam e into force in January 2004 and the m edia w ere reported to be heavy early users. 13 And in Ireland, the building of a proposed new national stadium w as abandoned after a new spaper, using the new ly enacted freedom of inform ation legislation, unearthed docum entation show ing the spiralling cost of the project.14 The crucial importance of freedom of information to the media can also be illustrated by the lack of information on certain topics. For example, the definitive story on the legality of Britain’s decision to go to w ar in Iraq cannot be w ritten until and unless the British Government decides to release the legal advice it w as given by its ow n top law yers. Journalists are aw are that the legal position w as less than solid – many academic legal commentators opposed the w ar and a top British Foreign O ffice law yer resigned her post over the advice given 15 – but the Government has so far released only an abbreviated version of the advice it w as given. An application for the release of the full advice has been made and refused; at the time of w riting, the matter is pending w ith the UK Information Commissioner.16 Freedom of Information and the Media under International Law. In tern ation al law h as lon g recogn ized th e stron g lin ks betw een freedom of expression, freedom of the m edia and freedom of inform ation. The starting point is the Universal Declaration of Hum an Rights (UDHR), adopted in 1948 and the United Nation’s flagship hum an rights docum ent.17 Article 19 of the Declaration states: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions w ithout interference and to seek, receive and im part inform ation and ideas through any m edia and regardless of frontiers. 20

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The UDHR, as a UN General Assem bly resolution, is not directly binding on States. How ever, parts of it, including Article 19, are w idely regarded as having acquired legal force as custom ary international law since its adoption in 1948.18 The International Covenant on Civil and Political Rights (ICCPR),19 a treaty ratified by over 150 States, including m ost O SCE Mem ber States,20 im poses form al legal obligations on State Parties to respect its provisions and elaborates on m any of the rights included in the UDHR. Article 19 of the ICCPR guarantees the right to freedom of expression in term s very sim ilar to those found at Article 19 of the UDHR: Everyon e sh all h ave th e righ t to freedom of opin ion . Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and im part inform ation and ideas of all kinds, regardless of frontiers, either orally, in w riting or in print, in the form of art or through any other m edia of his choice. 12 The Access to Inform ation Program m e: Fighting for Transparency during the D em ocratic Tran sition , Gergan a Jouleva: <h ttp:/ / w w w .freedom in fo.org/ case/bulgaria1.htm >. 13 “Jam aican s utilisin g Access to In form ation Act, says m in ister”, Jamaica O bserver, 7 February 2004. 14 Irish Times, 9 February 2004. 15 Review of Intelligence on Weapons of Mass Destruction, Report of a Com m ittee of Privy Counsellors (the “Butler Review ”), par. 376, 14 July 2004, HC 898 (London: the Stationary O ffice, 2004). 16 “Inform ation w atchdog tests law over advice on invasion”, The Independent, 8 February 2005. 17 Note 2. 18 See, for exam ple, Barcelona Traction, Light and Power Company Limited Case (Belgium v. Spain) (Second Phase), ICJ Rep. 1970 3 (International Court of Justice); N amibia O pinion, ICJ Rep. 1971 16, Separate O pinion, Judge Am m oun (International Court of Justice); Filartiga v. Pena-Irala, 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit). Generally, see McDougal, M.S., Lassw ell, H.D. and Chen, L.C., Human Rights and World Public O rder (Yale University Press: 1980), 273-74, 325-27. 19 UN General Assem bly Resolution 2200A(XXI), adopted 16 Decem ber 1966, in force 23 March 1976. 20 Andorra and Kazakhstan have signed but not yet ratified the ICCPR; the Vatican has not signed it (it has signed only very few hum an rights conventions).

PETER N O O RLANDER

21


Both Article 19 of the UDHR and Article 19 of the ICCPR have been interpreted as im posing on States the obligation to enact freedom of inform ation law s. The UN Hum an Rights Com m ittee, the body established to supervise the im plem entation of the ICCPR, has long com m ented on the need for States to introduce freedom of inform ation law s. In its 1994 Concluding O bservations on the im plem entation of the ICCPR in Azerbaijan, for exam ple, the Com m ittee stated that Azerbaijan “sh ould in troduce legislation guaran teein g freedom of inform ation…”21 In 1995, the UN Special Rapporteur on Freedom of O pinion and Expression 22 noted: The right to seek or have access to inform ation is one of the m ost essential elem ents of freedom of speech and expression.23

He returned to this them e in 1997 and since that year has included com m entary on the right to freedom of inform ation in each of his annual reports. In his 1998 Annual Report, the Special Rapporteur declared that freedom of inform ation includes the right to access inform ation held by the State: [T]he right to seek, receive and im part inform ation im poses a positive obligation on States to ensure access to inform ation, particularly w ith regard to inform ation held by Governm ent in all types of storage and retrieval system s.24

His view s w ere unanim ously w elcom ed by the UN Com m ission on Hum an Rights, the m ost authoritative UN body on hum an rights.25 In Novem ber 1999, the three special m andates on freedom of expression – the United Nations Special Rapporteur on Freedom of O pinion and Expression, the Representative on Freedom of the Media of the O rganization for Security and Cooperation in Europe and the Special Rapporteur on Freedom of Expression of the O rganization of Am erican States – cam e together for the first tim e under the auspices of ARTICLE 19. 22

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They adopted a Joint Declaration w hich included the follow ing statem ent: Im plicit in freedom of expression is the public’s right to open access to inform ation and to know w hat governm en ts are doin g on th eir beh alf, w ith out w h ich truth w ould languish and people’s participation in governm ent w ould rem ain fragm ented.26

That sam e year, the O SCE Heads of State recognized the crucial im portance of freedom of inform ation and freedom of the m edia. The Charter for European Security, adopted by O SCE Heads of State in Istanbul in 1999, states: We [The participating States] reaffirm the importance of independent media and free flow of information as w ell as the public’s access to information. We commit ourselves to take all necessary steps to ensure the basic conditions for free and independent media and unimpeded transborder and intraState flow of information, w hich w e consider to be an essential component of any democratic, free and open society.27

This clearly states the link betw een the different aspects of freedom of expression, freedom of the m edia and freedom of inform ation. The UN Special Rapporteur further developed his com m entary on freedom of inform ation in his 2000 Annual Report to the Com m ission, noting its fundam ental im portance not 21 UN Doc. CCPR/C/79/Add.38; A/49/40, 3 August 1994, under “5. Suggestions and recom m endations” (there are no page or paragraph num bers). 22 The O ffice of the Special Rapporteur on Freedom of O pinion and Expression w as established by the UN Com m ission on Hum an Rights, the m ost authoritative UN hum an rights body, in 1993: Resolution 1993/45, 5 March 1993. 23 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/1995/31, 14 Decem ber 1995, para. 35. 24 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/1998/40, 28 January 1998, para. 14. 25 Resolution 1998/42, 17 April 1998, para. 2. 26 26 Novem ber 1999. 27 SUM.DO C/1/99, 19 Novem ber 1999, para. 26.

PETER N O O RLANDER

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only to dem ocracy and freedom , but also to the right to participate and realization of the right to developm ent.28 He also reiterated his “concern about the tendency of Governm ents, and the institutions of Governm ent, to w ithhold from the people inform ation that is rightly theirs”. 29 Specifically, the Special Rapporteur laid dow n a num ber of general principles concerning freedom of inform ation: 44. O n that basis, the Special Rapporteur directs the attention of Governm ents to a num ber of areas and urges them either to review existing legislation or adopt new legislation on access to inform ation and ensure its conform ity w ith these general principles. Am ong the considerations of im portance are: •

24

FREEDO M

Public bodies have an obligation to disclose inform ation and every m em ber of the public has a corresponding right to receive inform ation; “inform ation” includes all records held by a public body, regardless of the form in w hich it is stored; Freedom of inform ation im plies that public bodies publish and dissem inate w idely docum ents of significant public interest, for exam ple, operational inform ation about how the public body functions and the content of any decision or policy affecting the public; As a m inim um , the law on freedom of inform ation should m ake provision for public education and the dissem ination of inform ation regarding the right to have access to inform ation; the law should also provide for a num ber of m echanism s to address the problem of a culture of secrecy w ithin Governm ent; A refusal to disclose inform ation m ay not be based on the aim to protect Governm ents from em barrassm ent or the exposure of w rongdoing; a com plete list of the legitim ate aim s w h ich m ay justify n on -disclosure should be provided in the law and exceptions should be n arrow ly draw n so as to avoid in cludin g m aterial w hich does not harm the legitim ate interest;

O F INFO RMATIO N


• •

All public bodies should be required to establish open, accessible internal system s for ensuring the public’s right to receive inform ation; the law should provide for strict tim e lim its for the processing of requests for inform ation and require that any refusals be accom panied by substantive w ritten reasons for the refusal(s); The cost of gaining access to inform ation held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself; The law should establish a presum ption that all m eetings of governing bodies are open to the public; The law should require that other legislation be interpreted, as far as possible, in a m anner consistent w ith its provisions; the regim e for exceptions provided for in the freedom of inform ation law should be com prehensive and other law s should not be perm itted to extend it; Individuals should be protected from any legal, adm inistrative or em ploym ent related sanctions for releasing inform ation on w rongdoing, viz. the com m ission of a crim inal offence or dishonesty, failure to com ply w ith a legal obligation, a m iscarriage of justice, corruption or dishonesty or serious failures in the adm inistration of a public body. 30

Most recently, in Novem ber 2004, the UN, O SCE and O AS special m andates adopted a Joint Declaration in w hich they build on the principles outlined above, adding a num ber of principles on secrecy legislation and the im pact it has on journalism , freedom of expression and freedom of inform ation: • Urgent steps should be taken to review and, as necessary, repeal or am end, legislation restricting access to inform ation to bring it into line w ith international standards in this area, including as reflected in this Joint Declaration. 28 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2000/63, 18 January 2000, para. 42. 29 Ibid., at para. 43. 30 Ibid., at para. 44.

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Public authorities and their staff bear sole responsibility for protecting the confidentiality of legitim ately secret in form ation un der th eir con trol. O th er in dividuals, including journalists and civil society representatives, should never be subject to liability for publishing or furth er dissem in atin g th is in form ation , regardless of w hether or not it has been leaked to them , unless they com m itted fraud or another crim e to obtain the inform ation. Crim inal law provisions that don’t restrict liability for the dissem ination of State secrets to those w h o are officially en titled to h an dle th ose secrets should be repealed or am ended.

Certain in form ation m ay legitim ately be secret on groun ds of n ation al security or protection of oth er overridin g in terests. How ever, secrecy law s sh ould define national security precisely and indicate clearly th e criteria w h ich sh ould be used in determ in in g w hether or not inform ation can be declared secret, so as to prevent abuse of the label “secret” for purposes of preventing disclosure of inform ation w hich is in the public in terest. Secrecy law s sh ould set out clearly w hich officials are entitled to classify docum ents as secret and should also set overall lim its on the length of tim e docum en ts m ay rem ain secret. Such law s should be subject to public debate.

The UN Hum an Rights Com m ittee has also expressed its concerns over the w ay secrecy law s are som etim es used to restrict freedom of the m edia. Com m enting on a high-profile case in the United Kingdom in w hich various new spapers had been banned from publishing inform ation leaked by form er secret service em ployees, the Com m ittee said: The Com m ittee is concerned that pow ers under the O fficial Secrets Act 1989 have been exercised to frustrate form er em ployees of the Crow n from bringing into the public dom ain issues of genuine public concern, and to prevent journalists from publishing such m atters. 26

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The State party should ensure that its pow ers to protect inform ation genuinely related to m atters of national security are narrow ly utilized and lim ited to instances w here it has been show n to be necessary to suppress release of the inform ation.31

Earlier, the Com m ittee had issued sim ilar critical com m ents on state secrets law s in Uzbekistan, recom m ending that they should be am ended and considerably tightened up.32 Conclusions. It is abundantly clear that freedom of inform ation is of great im portance to the m edia. Without freedom of inform ation, a free and independent m edia cannot exist. Freedom of inform ation is a crucial elem ent of the right to freedom of expression and is protected under legally binding international treaties. International law requires States to act on their treaty obligations and introduce freedom of inform ation legislation, and to am end their state secrets law s to bring them in line w ith international standards. ARTICLE 19 urges all States to act on the recom m endations m ade by the O SCE, UN and O AS special m andates on freedom of expression and the m edia and pass freedom of inform ation law s in line w ith the principles expressed by them . It is im portant that these law s con form w ith th e overridin g prin ciple of m axim um openness subject to narrow exceptions, as advocated in ARTICLE 19â&#x20AC;&#x2122;s standard-setting publication, The Publicâ&#x20AC;&#x2122;s Right to Know: Principles on Freedom of Information Legislation.33 More than 60 countries have now adopted freedom of inform ation law s and the rate w ith w hich new countries can be added to that list is increasing. In the O SCE region, only a handful of States rem ain w ithout effective freedom of 31 UN Doc. CCPR/CO /73/UK, 6 Decem ber 2001, para. 21. 32 UN Doc. CCPR/CO /71/UZB, 26 April 2001, para. 18. 33 ARTICLE 19, London: 1999.

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inform ation law s â&#x20AC;&#x201C; Andorra, Azerbaijan, Belarus, Cyprus, Germ any, the Holy See, Kazakhstan, Kyrgyzstan, Luxem bourg, Malta, Monaco, the Russian Federation, San Marino, Monten egro, M acedon ia an d Turkm en istan . 34 Th ese coun tries should act now on the com m itm ent they signed up to in the O SCEâ&#x20AC;&#x2122;s 1999 Charter on European Security and m ake freedom of inform ation a reality for all w ithin their jurisdiction.

Peter N oorlander is Legal Adviser at ARTICLE 19, a non-governmental organization that works to protect and promote the right to freedom of expression around the world.

34 Som e of these countries have law s that carry the nam e of freedom of inform ation but either do not grant sufficient access rights or have not been effectively im plem ented.

28

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László Majtényi Freedo m o f Info rmatio n – Experiences fro m Eastern Euro pe The notion of freedom of inform ation m eans that w e have the right to find out about inform ation of public interest and the right to inspect official docum ents. The State, sustained on our ow n taxes, cannot hide its operations from society. The shared purpose of data protection and freedom of inform ation is to continue m aintaining the non-transparency of citizens in a w orld that has undergone the inform ation revolution w hile rendering transparency of the State. The principles of freedom of inform ation habitually have their origins ascribed to the ideas of the Enlightenm ent. How ever, its first legal source can be found not in the French or Am erican Enlightenm ent but in Sw eden, w hich w as the first country in the w orld to recognize, in the Act of Freedom of the Press of 1766, that every citizen has the right to inform ation about official docum ents (undoubtedly, this becam e possible for the sole reason that betw een 1718 and 1772 Sw eden w as under parliam entary rule w ith rivalling parties). The 14th point of the Declaration of the Rights of Man and the Citizen of the French Revolution announced the need for transparency in the State’s econom ic m anagem ent: “All citizens have the right, by them selves or through their representatives, to have dem onstrated to them the necessity of public taxes, to consent to them freely, to follow the use m ade of the proceeds, and to determ ine the m eans of apportionm ent, assessm ent, and collection, and the duration of them .” It is not difficult to hear the sam e m axim behind the fam ous dem and of the citizens of the British colonies in North Am erica: “No taxation w ithout representation.” O ne m ay perhaps reasonably paraphrase this as: “No taxation w ithout inform ation on how those taxes are used.” LÁSZLÓ M AJTÉNYI

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Examples fro m Eastern Euro pe Poland. “(1) A citizen shall have the right to obtain inform ation on the activities of organs of public authority as w ell as persons discharging public functions… (2) The right to obtain inform ation shall ensure access to docum ents and entry to sittings of collective organs of public authority form ed by general elections, w ith the opportunity to m ake sound and visual records.” 1 The Act on Access to Public Inform ation, w hich w as enacted in Septem ber 2001 and w ent into effect in January 2002, gives anyone the right to access to public inform ation (exem ptions: official or state secrets, confidential and private in form ation an d busin ess secrets). Th e processor m ust respond w ithin 14 days. As yet there is not an independent com m ission or com m issioner to enforce the Act. Romania. In Rom ania the Constitution guarantees the right to access inform ation of public interest: “A person’s right of access to any inform ation of public interest cannot be restricted. The public authorities, according to their com petence, shall be bound to provide for correct inform ation to citizens on public affairs and m atters of personal interest…”2 The Law on Free Access to Inform ation of Public Interest w as approved in 2001. The public bodies m ust respond w ithin ten days. There are also exem ptions to citizens’ free access. These include, for exam ple, inform ation relating to national security, deliberations of the authorities, personal and business interests, crim inal investigations and judicial proceedings. Slovak Republic. “State bodies and territorial self-administration bodies are under an obligation to provide information on their activities in an appropriate manner and in the state language.”3 30

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“Everyone has the right to tim ely and com plete inform ation about the state of the environm ent and the cause and consequences of its condition.”4 The Act on Free Access to Inform ation w as approved in May 2000 and enforced on 1 January 2001. The authority m ust respond w ithin ten days and inform ation shall be provided free of charge w ith the exception of paym ent to cover the cost of reproduction or delivery. Czech Republic. In the Czech Republic’s Charter of Fundam ental Rights and Freedom s w e can read: “Freedom of expression and the right to inform ation are guaranteed.”5 The Law on Free Access to Inform ation w as enacted in May 1999 and cam e into effect in January 2000. There m ust be a response w ithin 15 days. O n 5 August 2004 the Czech Cabinet rejected a Senatesponsored am endm ent to the Law on Free Access to Inform ation w hich w ould have m ade access easier. Under the rejected am endm ent, inform ation could not have been w ithheld on the grounds of protecting business secrets or personal data. Albania. “1.The right to inform ation is guaranteed. 2. Everyone has the right, in com pliance w ith law, to get inform ation about the activity of state organs, as w ell as of persons w ho exercise state functions.”6 The Law on the Right to Inform ation about O fficial Docum ents w as enacted in 1999. The authorities m ust decide in 15 days and respond w ithin 30 days. The O m budsm an is 1

Article 61, Constitution of Poland.

2

Article 31, Constitution of Rom ania.

3

Article 26, Constitution of the Slovak Republic.

4

Article 45, Constitution of the Slovak Republic.

5

Article 17, Constitution of the Czech Republic.

6

Article 23 of the 1998 Constitution of Albania.

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tasked w ith oversight of the law. “Im plem entation of the law has been lim ited. The Act is not w ell know n and there are a low num ber of requests.”7 The O ECD report also observed that: “There are no adequate m echanism s in place to provide full access to inform ation.”8 Freedo m o f Info rmatio n in Hungary “In the Republic of Hungary everyone has the right to the free declaration of his view s and opinions, and has the right of access to inform ation of public interest, and also the freedom to dissem inate such inform ation.”9 O ne of the m ost im portant aim s of the rule of law revolution w as to guarantee the right of everyone to exercise control over his or her personal data and at the sam e tim e to have access to data of public interest in Hungary. I believe that not respecting either one of these tw o rights m ay easily lead to a curtailm ent of freedom and that it is not only preferable to com bine them in one Act but it is even advisable that w e place ourselves in the care of a joint protector. As w e m ake the transition from a totalitarian to a constitutional State founded on the principles of liberty, w e have especially good reason to grant equal and concurrent representation to freedom of inform ation and inform ational self-determ ination based on privacy protection. If w e do not, it w ill be even m ore difficult for us to face the past. But if w e do achieve this, society w ill have a chance not only to get the informational redress that it rightfully dem ands but also to avoid a tyranny of freedom . The model of informational rights in Hungary can be best appreciated as a follow er of the Canadian m odel. Besides Canada, Hungary is unique in the degree to w hich the protection of personal data w ithin its borders is linked w ith the constitutional values of freedom of information (see DP&FO I Act No. LXIII of 1992). In Europe, Hungarian legislation stands alone in 32

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having opted for the rather common-sense solution to enact a single law to regulate freedom of information in conjunction w ith the protection of personal data. Here it must be pointed out that exemplary European democracies, such as Germany, are still only planning to pass their ow n comprehensive freedom of information law s. In a w ay that is again pioneering in Europe, the Hungarian Act has assigned the protection of freedom of inform ation and of personal data to the sam e specialized ombudsman. This obviously sensible solution has been featured in the draft legislation of a number of countries, but it has not, to the best of my know ledge, been put into practice anyw here except in Hungary, Canada and recently in Great Britain and the provinces of Germany. In Canada, at both provincial and federal levels, one of the most exciting tasks is demarcating the thin line betw een these tw o mutually restrictive and seemingly conflicting constitutional values of freedom of information and data protection. While privacy and freedom of information are complementary imperatives, they also impose limits upon each other. It goes w ithout saying that those w ho hold public office or assume a public role enjoy limited privacy protection. Th e Hun garian freedom of in form ation law can be described as radically liberal legislation – a fruit ripened by the 1989 rule of law revolution w hich created the constitutional State. As such, the FO I Act is a firm refutation of the singleparty pow er structure w hich for decades used secrecy as its very foundation. Since the adoption of the law in 1992, a long enough period has passed for us to realize the social lim its of its enforcem ent and application. We m ust therefore be selfcritical and hasten to add that the Act prom ises m ore freedom than it has in fact enabled us to achieve. 7

Q uoted from the country reports by David Banisar, Freedom of Information and Access to Government Records Around the World (Privacy International, 2004).

8

Ibid.

9

Article 61, Constitution of Hungary.

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The obligation to safeguard freedom of inform ation extends to cover the entire Hungarian state adm inistration from the low est ranks to the highest levels of state pow er – both horizontally and vertically. All state-w ide or local governm ental bodies, public organizations or persons are under legal obligation to dissem inate data of public interest in their possession. Freedom of inform ation is a hum an rather than a civil right, and therefore it also extends to non-Hungarian citizens. (It is an interesting but not w idely know n fact that the law of the United States – a nation justly regarded as the yardstick in regard to freedom of inform ation – m akes only government agencies liable to supply inform ation, w hich m eans that the freedom of inform ation principle does not apply to docum ents controlled, say, by the President.) Under Hungarian law, any inform ation that is not personal in nature and is controlled by a state or local governm ent authority m ust be considered data of public interest. Access to data of public interest is not subject to any restrictions except by legally defined categories of secrecy (e.g. bank or insurance secrets, or confidential health-related inform ation). Freedom of inform ation is lim ited in several w ays. Access to data of public interest is restricted by the data protection act itself as a m eans of protecting personal data. I w ill not discuss the conflict betw een personal data and data of public interest. Basically adopting the ruling of the Council of Europe’s Convention, the Act on FO I perm its restriction of the legal obligation to publish inform ation relating to the follow ing categories: national defence, national security, crim inal investigation and prevention of crim es, the m onetary and currency policy of the State, foreign and international relations, and judicial procedure. Betw een the tw o poles of protection of personal data and state secrets, several categories of secret are identified and m ostly regulated by law (business secret, insurance secret, bank secret, m edical secret etc.). 34

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Both European law and national legislation, such as the Hungarian Act on the protection of personal data and on publishing data of public interest, grant an exception from the principle of publicity for draft docum ents used internally and in preparing decisions. This can be explained by the fact that it could be justified to carry out the decision-m aking process aw ay from the public eye, no m atter how dem ocratically it is run by the adm inistration. Decision-m aking processes cannot be exposed to the pressure of public opinion at every step of the procedure. Enjoying the highest level of protection are the secrets of th e State, w h ich h ave been subjected to rigorous – but arguably not the m ost stringent – legal lim itations in term s of procedure and substance. The Secrecy Act provides tw o cases of secrecy law. Data constitute a state secret w hen the classifier has determ ined during the classification procedure beyond doubt that their “disclosure before the end of the effective period, their unrightful acquisition or use, their revelation to an unauthorized person, or their w ithholding from a person entitled to them w ould violate or threaten the interests of the Republic of Hungary in term s of national defence, national security, crim inal investigation and prevention of crim es, the m onetary and currency policy of the State, foreign and international relations, or in term s of jurisdiction.” Inform ation can be categorized a state secret for a m axim um of 90 years. An official secret m ean s an y data w h ose “disclosure before the end of the effective period, unrightful acquisition or use, or access by an unauthorized person w ould interfere w ith the orderly operation of a body fulfilling a state or public function and w ould prevent it from exercising its official function and authority free from influence.” Requests for data of public interest m ust be m et w ithin 15 days, and any refusal to supply such inform ation m ust be com m unicated to the applicant w ithin eight days, together w ith an explanation. Controllers of data of public interest are LÁSZLÓ M AJTÉNYI

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under obligation to publish this periodically anyw ay. Whenever a request for inform ation is denied, the applicant has the option to m ake an appeal to the Com m issioner for Data Protection and Freedom of Inform ation, or to bring a court case. Such cases w ill be heard by the court w ith special dispatch, and the grounds for w ithholding inform ation m ust be proved by the party refusing to disclose the data. Should the sam e plaintiff seek help from the DP&FO I ombudsman, the procedure w ill be much quicker and definitely free of charge. The ombudsman w ill issue a recommendation for that case, w hich is not officially binding, but as a rule is accepted. Notw ithstanding these considerations, Hungarian law provides for an exception that is unheard of in other countries. Whenever the Commissioner for DP&FO I finds that a classification as a state or official secret is w ithout grounds, he or she is entitled in the recommendation to call on the classifier to alter this or to abolish it altogether. This empow ers the “recommendation” w ith administrative force, leaving the addressee w ith the option to accept or to file a law suit against the Commissioner, requesting the court to uphold the classification. Such cases w ill be heard by the County Court w ith special dispatch. It is w orth mentioning that to date a classifier has not risked a court procedure and has alw ays bow ed to the Commissioner’s judgement. How ever, law is not just a norm ative system of rules but also a social reality. The Com m issioner not only w atches over freedom of inform ation, but also lobbies for its recognition. To som e extent, the institutions created to safeguard constitutional rights have the pow er to generate the social dem and to have these rights enforced. Legislators are m andated to subm it bills w ith an im pact on inform ational freedom rights to the DP&FO I Com m issioner for evaluation, although they are not bound by law to accept the Com m issioner’s recom m endation. This authority is an im portant tool in the hands of the Freedom of Inform ation Com m issioner, enabling him or her to 36

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shape the legal environm ent. And yet, w e m ust give som e credit to the voices w hich claim that freedom of inform ation in Hungary – as in m any other places of the w orld – generates m ore sm okescreen than real flam es. The statistics in the Com m issioner’s reports, subm itted annually to Parliam ent, can be used to draw up a social diagnosis. Hungarians – like other peoples in eastern Central Europe – have travelled a unique road to civil society, and age-old habits and traditions are not easy to change. Believers in the aphorism “m y hom e is m y castle”, Hungarians tend to be m uch m ore sensitive to violations of their privacy than to secrecy over data of public interest. The ancient Latins w ho grew indifferent to an increasingly corrupt public sphere sum m ed up their w isdom in the advice: “Go not to the Forum , for truth resides in your ow n soul.” Many in Hungary today subscribe to this view. At any rate, the Com m issioner’s case statistics provide valuable lessons. While the num ber of cases investigated by the Com m issioner has been changing dram atically, the representation of the various inform ational branches show s great consistency. Since 1995, w hen the Bureau w as set up, the num ber of investigations has m ultiplied to reach a thousand in a single year. Most of them pertain to data protection, w ith only 10 per cent concerning freedom of inform ation issues. In term s of com plaints filed, the share of freedom of inform ation cases is only seven per cent. True enough, statistical figures add their ow n distortion. Matters involving freedom of inform ation are typically high-profile cases receiving keen social attention and w ide publicity. As such, their significance far outstrips their share in the total num ber of cases investigated. As I have suggested before, one can point to a num ber of long-standing great democracies w hose constitution and law do not spell out the constitutional right to freedom of inform ation. O urs in Hungary do – but w e have our ow n w eaknesses to face in this area. LÁSZLÓ M AJTÉNYI

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Ho w Far and Fo r Ho w Lo ng Can Go vernment Maintain Secrecy? Although the case I am going to address here has no direct or visible im plications for national security, it is tem pting to see it as a symptom of the paranoia permeating constitutional democracy. As such, it is an apt illustration of the kind of perversion in governm ent that m ay easily overflow the shadow y confines of the secret services to infect the w hole apparatus of the State. G overnment Sessions: O n or O ff the Record? Prom pted by citizens’ subm ission, I launched a probe into the issue of docum enting session s of th e Govern m en t of th e Republic of Hun gary, in cludin g th e preservation an d disclosure of official docum en ts. After the Governm ent’s rules of procedure w ere m odified in June 1998, governm ent sessions w ere no longer audiotaped or otherw ise recorded in verbatim m inutes until the opposition em erged victorious from the 2002 elections. A look at the history of docum enting governm ent sessions offers valuable lessons for the legal judgm ent of the case. As the director of the Hungarian National Archive told m e, the Archive kept the docum ents of governm ents that served in 1848–49,10 1867–1944, and 1944–83. These records are now accessible for research, and annually the Archive receives nearly a thousand requests for data from researchers w ishing to study them . Changes in governm ent practices w ith regard to docum enting governm ent sessions and preserving those records can be clearly traced over the years. After the political transform ation of 1990 the governm ents returned to the habit of holding their sessions on the record. This constitutional routine w as derailed by the cited procedural change 11 instated by the Governm ent that form ed in 1998, w hich abolished the rule of docum enting governm ent sessions.12 38

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When I inspected the adm inistrative prem ises of the O ffice of th e Prim e M in ister on 10 D ecem ber 1998, th e official in charge of the departm ent inform ed m e that every single proposal to be discussed by adm inistrative secretaries prior to convening a session of governm ent w as classified as “Strictly Confidential”, “Confidential”, or “Not Public”. The adm inistrative departm ent added the last of these stam ps itself if the docum ent had been subm itted to the O ffice of the Prim e Minister w ithout one of these designations. Dem ocracies around the w orld em ploy various m eans to docum ent the operation of their governm ents. Som e countries insist on verbatim m inutes, w hile others m erely m andate abstracts of content. Accordingly, there are as m any w ays to regulate the process of recording and the handling of the documents thus created. In certain countries, freedom of information is a constitutional right; in others it is a privilege guaranteed by law only; in several countries, w hich lack proper legal regulations on this count, the need for this freedom right is acknow ledged and legitim ized by custom and an unw ritten constitutional code of values. In som e places the preferred solution is to rem ove a specified range of governm ent papers from the am bit of freedom of inform ation. Starting in the eighteenth century, 7

Q uoted from the country reports by David Banisar, Freedom of Information and Access to Government Records Around the World (Privacy International, 2004).

8

Ibid.

9

Article 61, Constitution of Hungary.

10 The age of m odern parliam entary culture in Hungary, understood as governm ent reporting to parliam ent, began w ith the fall of Habsburg absolutism in April 1848. From 1849, w hen the revolution and w ar of independence w ere crushed, until the Com prom ise of 1867, pow er reverted to absolutist m odels. 11 Governm ent Decree 1090/1998 (VII. 15.). 12 According to this regulation, w hich rem ained in effect until the ruling party lost the elections in 2002, “The abstract prepared of sessions of the governm ent shall contain the nam es of those attending, the titles of the proposals discussed, the nam es of those contributing com m ents to the debate, the fact and for/against ratio of voting, if any, reference to the disagreem ent, if any, voiced by a cabinet m em ber from the coalition party, as w ell as the decision itself.”

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m onarchs often m ade the solem n pledge that the affairs of the State w ould be conducted in full view of the public eye.13 The age of enlightened absolutism heralded a period in w hich the citizens’ rights to exercise control over governm ent have gradually broadened, despite a num ber of setbacks in the process. This right also im plies publishing the governm ent’s papers and dissem inating inform ation about its operations. Th e m atter un der review is rife w ith th e difficulties th at occur w hen reconciling a num ber of m utually contesting constitutional rights and interests. The existing regulations m ust observe the constitutional right to access data of public interest. They m ust serve the cause of transparency in the w ork of the governm ent, leave open the opportunity for scholarly and scientific study of governm ents past or present, and they m ust be conducive to the sm ooth operation of the adm inistration free of undue influence. In this sense, w e have no constitutional grounds to dem and full publicity about all of the governm ent’s activities as they are happening as this w ould interfere w ith its sm ooth operation. The disclosure of data of public interest is fundam ental proof of the proper functioning of the dem ocratic constitutional State w hich is declared in Article 2 (1) of the Hungarian Constitution. The significance of this w as recognized in the Council of Europe’s 1982 Declaration on Freedom of Inform ation, w hen it affirm ed the goal of the Mem ber States to follow an inform ational policy of openness in the public sphere – including one of allow ing access to inform ation – in order to help their citizens better understand political, social, econom ic and cultural issues, and to im prove their skills in freely discussing such topics [clause 8. II. c)]. Nevertheless, the disclosure of data of public interest and the right to free research both encounter constitutional lim its in those provisions of secrecy w hich com ply w ith legal requirem ents and the rules governing the restriction of constitutional rights. 40

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“The sm ooth operation of the adm inistration free of undue influence” w ould obviously be thw arted if the law prescribed full publicity for governm ent sessions. Little w onder then that th is is n ot th e custom in dem ocracies aroun d th e w orld. Therefore, far from being illegal, provisional restrictions upon th e freedom of in form ation can be con stitution ally w ell founded w hen these are m otivated by the above-m entioned purpose. It cannot properly be regarded as a constitutional exigency to prepare full docum entation of governm ent sessions – m eaning verbatim m inutes, audio and/or video tapes. Legislation can outline several w ays of docum enting these sessions. How ever, it m ust be kept in m ind that the Governm ent is not a congregation of private individuals but a body of officials w hich plays a crucial role in the system of political institutions. O n account of its prom inent legal and political position, it is indispensable to have its activities docum ented. It is not sufficient to publish resolutions but the content of governm ent sessions needs to be docum ented. Seen in this light, Governm ent Decree No. 1090/1998 (VII. 15.) clearly broke w ith the traditions of 1848 w hich had held sw ay for a century and a half in Hungary. The total prevention of access in the interest of “the sm ooth operation of the adm inistration free of undue influence” cannot be deem ed inevitable or, for that m atter, equitable.

13 A case in point is the 1868 Im perial O ath of Japan’s Em peror.

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II. Freedo m o f the Media o n the Internet

Arnaud Am ouroux and Christian MĂśller 2004 â&#x20AC;&#x201C; The Internet Year fo r the RFO M Morris Lipson In the Name o f Pro tecting Freedo m o f Expressio n: Rejecting the Wro ng Rule fo r Liability fo r Internet Co ntent Cathy Wing An Intro ductio n to Internet Literacy Gus Hosein O pen So ciety and the Internet: Future Pro spects and Aspiratio ns

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Arnaud Am ouroux and Christian Möller 2004 – The Internet Year fo r the RFO M

2004 w as again a very eventful year in term s of Internet policy, legislation and governm ental rulings as w ell as technical innovation and free speech issues. China has m ade every day or so greater use of new technologies to control the circulation of new s and inform ation, and to curb free m edia through censorship and assaults on the Internet infrastructure. In Iran, Syria and Vietnam dozens of Internet users languish in prisons for looking at banned w ebsites. The supposedly w ell-established dem ocracies of Europe and North Am erica are certainly not off the hook and the distrust of the Internet in these countries is also w orrying, although to a lesser extent. 2004 also saw the rise of w eblogs or “blogs”, a new form of journalism w hich is reported to eventually challenge classical form s of journalism – an assertion that rem ains to be proved in the long term . In 2004 a virtual battle w as fought by a num ber of online activists on Google’s results for the search w ord “Jew ”. Debate w as also sparked off about the legitim acy of the Internet Corporation for Assigned Nam es and Num bers (ICANN) assigning all Internet addresses and dom ain nam es throughout the w orld. O verall, “Internet governance” w as a subject of heated discussion in the perspective of the second part of the World Sum m it on the Inform ation Society (WSIS) in Tunis in 2005. Finally, in 2004 governm ents and international organizations continued to try to com e to grips w ith the challenges of the new inform ation technologies. The Council of Europe looked at the “Internet w ith a Hum an Face”, UNESCO organized conferences on Internet, Hum an Rights and Culture, the European Com m ission launched the next phase of the ARNAUD AMO URO UX AND C HRISTIAN M Ö LLER

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Safer Internet Action Plan and the O SCE tried to pinpoint the possible “Relationship betw een Racist, Xenophobic, and antiSem itic Propaganda on the Internet and Hate Crim es” and w ill soon address the use of the Internet by terrorists. Th e O SCE Represen tative on Freedom of th e M edia (RFO M), also, continued his endeavours to guarantee freedom of the m edia on the Internet. An expert sem inar w as held in June in Vienna and about a hundred experts assem bled in August for the Second Am sterdam Internet Conference. Furtherm ore, the Representative and his staff had a say in the discussions at various occasions and offered cutting-edge experts the opportunity to address a w ide audience. How ever, the m ain goal of giving an account of the past year’s activities is not really to reel off a rather boring list of m eetings, venues and participants but to show the broad range of topics addressed, their interconnection and com plexity as w ell as our strategy to contribute to the Internet debate. Certainly, the m ilestones of RFO M’s activities in 2004 have been the Am sterdam Conference and the M edia Freedom Internet Cookbook. The Second Amsterdam Internet Conference & The Media Freedom Internet Cookbook. From 27 to 28 August 2004 the Second RFO M Internet Conference took place in the City Hall of Am sterdam . The event brought together m ore than 25 speakers and an audience of about 80 international experts from O SCE, Council of Europe, UNESCO , academ ia, m edia and a num ber of non-governm ental organizations from all over the O SCE area, including Europe, the Caucasus, Central Asia and North Am erica. The topics included legislation and jurisdiction for digital netw orks; hate speech on the Internet; education and the developm ent of Internet literacy; access to inform ation and netw orks; as w ell as the problem s of self-regulation, blocking and filtering. 46

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A quick glance at som e of the titles chosen for presentations tells you about the general issues and position of the debate at this conference: “Reading the Readers”, “Hate Speech – What Is There To Be Worried About?”, “Who Is Watching the Watchm en” or “Confronting Hate Speech O nline: Should Big Brother Be Involved?” These are som e of the catchy headings about serious issues that show that the expert com m unity is not autom atically caving in to the calls for regulation and norm alization w hen it com es to the Internet. Even if som e people m ight not necessarily agree, w e think that it is useful once in a w hile to step back and have a proper look at the debate about the Internet, m edia freedom , w hat is really at stake and of w hat w e should be cautious. This is w hat this conference w as m eant to do. But the conference w as also m eant to produce recom m endations and exam ples of best practices for guaranteeing m edia freedom online and at the sam e tim e handling “bad” content. Another purpose w as to find a com m on term inology that helps us to understand the Internet’s particularities. This n ecessitates explain in g, clarifyin g an d differen tiatin g, for exam ple betw een an obvious crim e like child pornography and content like hate speech w here any consensual definition is difficult. Eventually, users, governm ents and other stakeholders m ight com e to the conclusion that the Internet is not unavoidably the “evil” black hole som e people m ight think. How ever, there is an urgent need to identify w ays that counter illegal contents w ith a m inim um “chilling effect” on freedom of expression and w ithout any lim itations for the various m edia types that the Internet hosts. Prom otion of the least dam aging and the least restrictive approach in order to further guarantee freedom of expression is one of the m ain goals of RFO M’s search for “best practices”.

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The M edia Freedom Internet Cookbook w as published in Decem ber 2004 as a result of the Second Am sterdam Internet Conference and it w as presented by RFO M during his Regular Report to the Perm anent Council, the w eekly m eeting of all 55 delegation s to th e O SCE. Th e 276-page-publication is available free of charge in English and Russian editions.1 O ther Activities in 2004. Besides these tw o highlights in 2004, RFO M has been represented in several conferences and m eetings dealing w ith Internet issues. These include the release of the Reporters sans frontières Internet under Surveillance Annual Report in Paris, the UNESCO conferences on Freedom of Expression in Cyberspace in Paris and on Internet, Culture and Human Rights in O egstgeest, the Netherlands and m any m ore. The O ffice has also organized several expert side-events on the m argins of m ajor O SCE m eetings. During the Brussels Conference on Tolerance and the Fight Against Racism, Xenophobia and Discrimination in Septem ber as w ell as during the O SCE Hum an Dim ension Im plem entation Meeting in Warsaw in O ctober, RFO M convened tw o successive side-events w here several experts advocated that education, m edia aw areness activities and developm ent of Internet literacy should be seen as the m ost effective tools to increase tolerance and to counter hate speech, both online and offline. The Representative also organized a side-event on “Guaranteeing Media Freedom on the Internet” during the Paris Meeting on the Relationship between Racist, Xenophobic, and anti-Semitic Propaganda on the Internet and Hate Crimes in June 2004. Here experts stressed that w ithin regulatory and co-regulatory bodies for the Internet, transparency, accountability and the right to appeal needed to be observed to at least the sam e degree as in classic m edia. 1

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It can also be dow nloaded from the FO M w ebsite at <http://w w w.osce.org/fom /docum ents/books>.

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Activities at the current stage of the project in 2005/2006 include a Third Am sterdam Internet Conference, further prom otion of the Internet as a tool to foster tolerance and guarantee freedom of the m edia at different O SCE conferences and the im plem entation of the recom m endations from the First Am sterdam Conference by assisting participating States. Lessons Learned. But w hat w as the outcom e of all these m eetings and conferences? The m ost im portant results of the experts’ discourse and general recom m endations w ill be presented in a nutshell in the follow ing paragraphs. Th e Cook book com bin es th e Recom m en dation s by RFO M (“Recipes”) w ith 18 articles by renow ned international Internet and hum an rights experts. It offers insights into: • What m edia freedom s or even m edia types can get lost in the hands of uninform ed or uncaring legislators; • How good intentions of uninform ed or uncaring legislators result only in loss of freedom rather than helping to fight “bad content”; • What are the unexplored non-regulatory w ays of fighting “bad content”, m ethods that use the potential of the Internet itself and of the com m unities that create and consum e m edia on the Internet? The authors of the Cookbook do not deny the challenges posed by the freedom of the Internet. There is a certain am ount of appalling m aterial to be found on the Internet, but the “inform ation society” does not exist in a norm ative or legal vacuum , as Rikke Frank Jørgensen of the Danish Institute for Hum an Rights reckoned. Law s and provisions, for exam ple to fight child pornography, exist and are being enforced by police and prosecutors. How ever, besides clearly illegal contents there are other form s of so-called “h arm ful” or “un w an ted” con ten t like obscenities or hate speech (although som e experts raise the ARNAUD AMO URO UX AND C HRISTIAN M Ö LLER

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objection that there is no m ore xenophobia or racism on the Internet than you can find in an ordinary pub anyw here on a norm al Friday evening). Also the m ere fact that som ething exists online tells you nothing about how w idely it is read or accepted. The Internet is a rather distorted reflection of society w here m inority and extrem e opinion are indistinguishable from the m ainstream . And it is im portant not only to see the sm all fraction of problem atic content w hen it com es to the Internet. The overw helm ing am ount of online content is useful – or at least m ostly harm less. The benefits of access to inform ation, w hich is a prerequisite for any political, econom ical and cultural developm ent, outw eigh the risks by far and the Internet enables the vast m ajority to com m unicate and collaborate for m ore progressive ends and to counter “bad” content on it. There is an overriding consensus betw een technicians, the academ ic w orld and m any hum an rights law yers that filtering and blocking content on the Internet is not an option. Studies show that it is sim ultaneously “under-effective” and “over-blocking” and poses a serious danger to the principles of freedom of expression and free m edia. O r as Ben Edelm an put it, “on a filtered Internet things just are not as they seem ”. In dem ocratic States a com plete blockade is not in line w ith basic principles of free expression. But at the sam e tim e, even the blocking of particular sites tends to go further than the lim its one first sets because it is anything but an exact science. So even w ith the best intentions, legislators and regulators m ay cause substantial collateral dam ages to freedom of expression even if they originally only had one specific target. The technical infrastructure of the Internet itself, how ever, is no safeguard against censorship as exam ples arise everyday from all over the w orld. Together w ith the experts, w e believe that recognizing this difficulty of “controlling” content in a global m edium 50

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should as a logical consequence lead to the prom otion of aw areness, critical thinking skills, and know ledge as “lifelong literacies” and the basic foundations for all attem pts to counter hate speech. The Internet does not w ork on the principles of censorship or control, but rather on the principle of responsible decision-m aking by literate and enlightened users. O r as Prof. Frederick M. Law rence put it: “The educated m ind is the best filter im aginable.” The Internet is not a m edium . In fact, it is an infrastructure com bining different m edia, classical and new, and it also consists of private spheres and public space. Legislation and governm ental action m ust provide safeguards to guarantee the privacy of the form er, the openness of the latter and freedom of expression in general. Also, it m ust not be forgotten that provisions of national legislation guaranteeing fundam ental rights as w ell as the Universal Declaration of Hum an Rights or the European Convention on Hum an Rights also apply to the Internet w ithout restrictions. Digital m edia are forcing a shift in responsibility from statutory regulators tow ards the individual citizens in m odern dem ocratic societies. This is a paradigm shift and a challenge for all societies but at the sam e tim e the only passable w ay as all alternatives are at the expense of the hum an right of freedom of expression. Each attem pt to “balance” this w ith issues of national security or even intellectual property and copyright regim es or the protection of the public from obscene content is alw ays a considerable threat to hum an rights. What is m ore, the enorm ous potential of the Internet for educational purposes has not yet been fully utilized. The Internet is indeed a great tool for fostering developm ent, supporting aw areness raising activities and providing key databases of inform ation for w ider public dissem ination. It is at the sam e tim e the m ost efficient w ay of fighting abuse, m ore than blunt regulation or filtering m echanism s could ever be. ARNAUD AMO URO UX AND C HRISTIAN M Ö LLER

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“Bad” speech can be countered w ith m ore speech on the Internet. This battle of ideas is certainly not an easy one but it has to be fought. Racist and xenophobic ideas can be unm asked as w hat they are instead of just m oving them out of the realm of society’s vigilance. Keeping the accustom ed level of freedom on the Internet and resisting the regulatory reflex m ight be far m ore beneficial for all than im plem enting hazardous rem edies to uncertain diseases.

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Morris Lipson In the Name o f Pro tecting Freedo m o f Expressio n: Rejecting the Wro ng Rule fo r Liability fo r Internet Co ntent

It m ight be thought that publishing content over the Internet is pretty m uch like publishing m aterial in a new spaper. As this paper explains, courts in particular have been tem pted to think so. How ever, this fact, in com bination w ith the fact that restrictions on the publication of content vary w idely from jurisdiction to jurisdiction, yields the result, probably unintended, of a very significant threat to freedom of expression. This paper describes that threat, and recom m ends a w ay of avoiding it. A Range of Content Restrictions. Different national and subn ation al legal regim es, often supported by in tern ation al instrum ents, have content restrictions on publication (not to say, expression m ore generally) w hich m ay differ quite considerably. The consequence is that the publication of m aterial in one jurisdiction, perfectly legal and non-actionable there, m ay w ell be subject to crim inal or civil liability in other jurisdictions. For the purposes of w hat follow s, I w ill restrict m y atten tion to variation s in restriction s on h ate speech an d defam ation, though the points m ade in this paper apply w ith equal force to other (varying) content restrictions: on obscenity or pornography, blasphem y or sedition, am ong others. Take hate speech first. In the United States, it is w ell settled th at th e publication of racially vilificatory m aterial is protected un der th e First Am en dm en t of th e Un ited States Con stitution un less it is directed to in citin g or producin g M O RRIS LIPSO N

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im m in en t law less action and is likely to incite or produce such action.1 This is a very high threshold: publications w hich cast clear and vulgar aspersions on racial groups, w hich express the strong desire that certain groups be deported or eliminated altogether, are protected unless it can be show n that they are intended to produce violence and in fact are likely to produce such violence imminently. In the United Kingdom, the test for restricting certain racial content is the substantially w eaker one of w hether the challenged speech is intended to stir up racial hatred and “is likely” to stir it up. By the terms of the applicable statute, at least, no show ing needs be made of the imminence of any allegedly likely violence, or indeed of any likely violence at all.2 Again, jurisdictions including Austria, France and Germany have blanket restrictions on Holocaust denial. Finally, broad and potentially far-reaching bans are common: to take one example, Article 156 of the Criminal Code of Uzbekistan prohibits the premeditated “insulting [of] citizens’ feelings … committed w ith the purpose of … agitating … intolerance or separation betw een groups [w hich are distinguished racially or ethnically]”.3 It m ust be said that international instrum ents reflect a far from consistent approach to w hat sort of expression m ay be prohibited as hate speech. Article 20(2) of the International Covenant on Civil and Political Rights requires the enactm ent of national legislation w hich prohibits only the advocacy of racial hatred “that constitutes incitem ent to discrim ination, hostility or violence”. In contrast, Article 4(a) of the International Convention on the Elim ination of All Form s of Racial Discrim ination prohibits not only the incitem ent of racial discrim ination, but also the dissem ination of “ideas based on racial superiority or racial hatred”. The Additional Protocol to the Convention on Cybercrim e goes even further, in both directions so to speak, in that it invites Parties to enact prohibitions w hich can be very broad (for exam ple, on the m ere 54

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“distribution” of racist m aterial through a com puter system [Article 3], or on the public insulting of persons “for the reason that they belong” to a racial or ethnic group [Article 5]); but it also perm its Parties to opt out of these provisions (or effectively to do so). The effect is explicitly to recognize and m andate substantial differences in restrictions on hate speech.4 Sim ilar, an d sim ilarly dram atic, variation s in crim in al defam ation law s exist across jurisdictions. In Azerbaijan, for instance, you can be im prisoned for as m uch as tw o years if you defam e som eone, and you can go to prison for as m uch as six m onths just for insulting them .5 Many countries have special, and particularly objectionable from the point of view of freedom of expression, crim inal penalties for insulting the President or other heads of state, or for insulting public institutions or even national flags; enhanced crim inal penalties are often a part of such regim es.6 In m any countries, prosecutions 1

Brandenburg v. O hio, 395 US 444 (1969).

2

1986 Public O rder Act, Section 18.

3

The European Court of Human Rights has found on numerous occasions that a similarly broadly-w orded provision in the Turkish Criminal Code has been employed to restrict expression w hich is protected under Article 10 of the European Convention on Human Rights. See e.g., Okcuoglu v. Turkey (8 July 1999, Application No. 24246/ 94); Karatas v. Turkey (8 July 1999, Application No. 23168/94).

4

It is perhaps w orth noting that, at the tim e of w riting, there are 23 signatories to the Additional Protocol, but there have been no ratifications.

5

Articles 147 and 148, respectively, of the Crim inal Code of 2000.

6

For instance, the Crim inal Code of Albania prohibits intentionally insulting: “an official acting in the execution of a state duty or public service, because of his state activity or service” (Article 239); “an official acting in the execution of a state duty or public service, because of his state activity or service” (Article 240); “the President of the Republic” (Article 241); “a judge or other m em bers of trial panel, the prosecutor, the defence law yer, the experts, or every arbitrator assigned to a case because of their activity” (Article 318); “prim e m inisters, cabinet m em bers, parliam entarians of foreign states, diplom atic representatives, or [representatives] of recognized international bodies w ho are officially in the Republic of Albania” (Article 227); and “the flag, em blem s or national anthem of foreign countries and international organizations” (Article 229). It is w ell to point out that this sort of enhanced coverage is precisely the opposite of w hat international law requires, recognizing as that law does that public officials should be required to accept m ore, rather than less, criticism . See e.g., Lingens v. Austria (8 July 1986, Application No. 9815/82) para. 43; Thoma v. Luxembourg (29 March 2001, Application No. 38432/97) para. 47.

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under such law s occur w ith alarm ing frequency. O n the other hand, how ever, som e jurisdictions, such as Bosnia and Georgia, have actually abolished crim inal defam ation provisions altogether. And other countries w hich have crim inal defam ation on the books have not seen prosecutions under such provisions for m any years.7 To repeat the principal point thus far: A racial com m ent, or a critical com m ent about a public official, m ay be fully protected in one jurisdiction, w hile at the sam e tim e sanctionable by the crim inal regim es (or actionable in the civil regim es) of other jurisdictions. Indeed, som e jurisdictions support the punishm ent, either crim inal or civil, for expression w hich is alm ost certainly protected under the international law of freedom of expression. The Newspaper Rule for Assessing Liability in Foreign Jurisdictions. Consider the situation of a new spaper publisher, facing the fact that content in his or her new spaper m ay not constitute illegal or civilly actionable expression in the jurisdiction w here the new spaper is typically read, but w ould be punishable or civilly actionable in other jurisdictions. To set the stage for the special problem posed for Internet publishers by the variation of content restrictions across jurisdictions, let us ask the follow ing: Would the newspaper or the editor be legally liable in the event that the article in question finds its way into one of the latter jurisdictions? The answ er is: it depends. Note, first, that publishers, particularly those w hose new spapers cross national frontiers, have w ell-established distribution netw orks. New spapers are sh ipped th rough out th e n ew spaperâ&#x20AC;&#x2122;s h om e coun try, an d abroad as w ell, to vendors w ho have sales arrangem ents w ith the new spaper, and to individual subscribers.

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In these cases, it is highly foreseeable to the publisher that copies of the new spaper w ill find their w ay to these foreign vendors and subscribers and w ill be read in those jurisdictions. Indeed, it is not only foreseeable â&#x20AC;&#x201C; the publisher fully intends that copies of the new spaper be sent to and read in those jurisdictions. Under these circum stances, it is appropriate, and courts and other tribunals have not hesitated in concluding, that if the new spaper contains m aterial falling under a hate speech ban, or if it is defam atory, in one of the jurisdictions to w hich copies are sent, the new spaper and publisher (and perhaps others affiliated w ith the new spaper) w ill be liable for that content in that jurisdiction. 8 This situation, w hich m akes reasonable sense, is to be sharply distinguished from the situation in w hich a new spaper w ith certain problem atic content finds its w ay by accident, so to speak, into a jurisdiction in w hich such content is illegal, notw ithstanding that the content is legal in all the jurisdiction s of th e paperâ&#x20AC;&#x2122;s distribution n etw ork. For exam ple, a tourist from Uzbekistan purchases a new spaper published in the United States at LaGuardia Airport in New York. It contains racially vilificatory m aterial relating to an ethnic com m unity in Uzbekistan. The tourist drops the new spaper on a seat in the arrivals lounge at Tashkent airport w here it is picked up by an airport em ployee w ho takes it hom e w ith her and reads it there. The new spaper has no subscribers or vendors in Uzbekistan. The reader finds the m aterial offensive, takes it to the authorities w ho determ ine that it is illegal racist content under Article 156 of the Crim inal Code, and they prosecute the publisher. 7

A sim ilar variation can be seen in civil defam ation regim es.

8

See e.g., Shevill v. Presse Alliance S.A., Case C-68/93 (1995) 2 A.C. 18; Berezovksy v. M ichael (2000) 2 All ER 986 (both relating to defam ation, but usefully illustrating the general principle).

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It is quite clear that in this circum stance, the publisher should not be held liable, and in m ost jurisdictions w ould not be so held. Why? Because it w as not reasonably foreseeable by the publisher that the new spaper w ould be read in Tashkent; the publisher took no steps at all to get the new spaper to that jurisdiction and had no control over the fact that it w ould end up there. Under these circum stances, courts w ould hold that, in fact, the new spaper was not published in that jurisdiction; and on that basis w ould not im pose liability on it there. This hypothetical situation illustrates w hat I w ould like to call the “new spaper rule” for liability for new spaper content. According to this rule, a publisher is legally liable for content deem ed illegal or otherw ise actionable by a given jurisdiction as long as tw o conditions are m et: (1) a copy of the new spaper actually reaches the jurisdiction and is read there; and (2) the publisher had reason to know that the new spaper w ould probably be read there – because, m ost prom inently, the jurisdiction is in the distribution netw ork of the new spaper. This liability rule, m ost crucially, im poses liability in every place in the new spaper’s distribution netw ork where the newspaper is read, regardless of where it is produced or where the content was written. Applying the Newspaper Rule to Internet Publications. Publication on the Internet is fundam entally different from publication by new spaper, in w ays directly relevant to the new spaper rule. Suppose som eone w rites an article w ith racial content. It is w ritten in the United Kingdom , uploaded and stored there on the author’s w ebsite. The author know s, or should know, that the m om ent that the m aterial is posted on his w ebsite, it is instantly accessible by virtually any person virtually anyw here in the w orld.9 To put it another w ay: fundam entally unlike the typical new spaper, the Internet m akes 58

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virtually every person w ith Internet access within the distribution network of any Internet publisher. And, equally crucially, this is a fact w hich virtually every Internet user know s, or should know. What, therefore, if w e em ploy the new spaper rule for fixing liability for m aterials posted on the Internet? It’s sim ple really: (1) since the new spaper rule subjects a new spaper to potential liability for any content actionable in any jurisdiction w ithin its distribution netw ork, (2) since virtually every place w ith a com puter connected to the Internet is w ithin the distribution netw ork of every w ebsite, then (3) application of the new spaper rule to Internet publication subjects an Internet publisher to liability in virtually every jurisdiction in the world. As w e have already seen, how ever, different jurisdictions have radically different content restrictive regim es; som e have restrictions on allegedly defam atory m aterial, or on allegedly racist m aterial, w hich go far beyond w hat is perm issible in on e’s h om e jurisdiction . Som e, in deed, h ave restriction s w hich are not m andated by the international law of freedom of expression. Yet, if the new spaper rule is also the rule for Internet publication, the Internet publisher w ould be “legitim ately” liable for content w hich is legal and protected in his or her hom e jurisdiction (and w hich m ight also be protected by international law ), as long as (1) it is prohibited in a jurisdiction w hich has Internet access and (2) som eone actually dow nloads it there. 9

I say “virtually” for tw o different but related reasons. First, if I have sophisticated technical skills and som e softw are, I can restrict access to m y w ebsite, for exam ple, only to persons w ho have taken out a subscription. In that case, only persons of w hom I have know ledge (or should have) w ill have access to the site. At the other end, there m ay be som e form of sophisticated blocking or shielding softw are em ployed by a particular server w hich w ould prevent access to m y w ebsite, or to the particular content in m y article on that w ebsite, for any w ouldbe user attem pting to gain access em ploying that server. These, how ever, are relatively exceptional situations.

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Some Cases. Surprisingly, to som e at least, it w ould appear that the trend has indeed been to apply the new spaper rule to Internet publication. There is, for exam ple, the attem pted prosecution of Frederick Toben, w ho had posted m aterial denying the Holocaust on a w ebsite in Australia. Toben w as arrested in 1999 on a visit to Germ any and w as tried there, in part for inciting racial hatred. That part of the prosecution w as based on the fact that the m aterials on his w ebsite had been dow nloaded in Germ any. The trial court had dism issed the charge because the offending m aterials “existed” outside Germ any, but the Bundesgerichtshof reversed, holding that Germ an law s prohibiting the glorification of the Nazi party could be applied to m aterials situated outside Germ any as long as they w ere dow nloaded w ithin the jurisdiction.10 A defam ation case brought in Australia applied sim ilar reasoning. Dow Jones & Company Inc. v. Gutnick 11 concerned the uploading by the Wall Street Journal of a story w hich m ade critical com m ents about Gutnick, an Australian businessm an. The story w as w ritten in the United States, and w as uploaded and stored on a com puter there. Gutnick dow nloaded the story in Australia, read it there, took offence and sued the Wall Street Journal for defam ation in Australia. It is highly likely that the m aterial in question w ould not have been found to be defam atory in the United States, but could w ell have been so foun d un der th e defam ation law s of th e Australian state w here the dow nload occurred. Again, the Wall Street Journal argued that publication occurred in the United States, w here the m aterial w as uploaded and stored; Gutnick disagreed, arguing that publication occurred w here dow nload occurred – in Australia. At a crucial point in its reasoning, the court w rote that “those w ho post inform ation on the World Wide Web do so know ing that the inform ation they m ake available is available to all and sundry w ithout any geographic restriction”. The 60

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court’s poin t appears to be th at in th is respect th e sam e applies to Internet and new spaper publishers. As new spaper publishers know about and control their distribution netw orks and have full know ledge of w here the content of their new spapers is likely to be read, it is appropriate to im pose liability on them for any content found problem atic anyw here in their distribution netw orks. In the sam e w ay Internet publishers have full know ledge that the reach of the m aterials they publish is everyw here (that is, the w hole w orld is in their distribution netw ork), and therefore im posing liability in any jurisdiction in w hich the m aterial is dow nloaded is entirely proper. O n this basis, the court took the case. Conclusion. Applying the new spaper rule to Internet publication subjects Internet publishers to the content restrictions of virtually every country on earth, regardless of w hether such content restrictions exist in the jurisdictions w here such publishers live,12 and regardless of w hether the foreign restrictions com ply w ith the international freedom of expression standards. Application of the new spaper rule w ill subject persons living in regim es w hose law s fully protect freedom of expression to the law s of regim es w hich regularly censor, and w hose public officials otherw ise keep a stranglehold over the press and others by the use and abuse of content-restrictive law s. 10 See “Germ an Hate Law : No Denying It”, available at <w w w.w ired.com /new s/ politics/0,1283,40669,00.htm l>. Another case of the sam e ilk involved Yahoo!, Inc., w hich operated an autom ated online auction site from the United States. Nazi m em orabilia w ere offered for sale on the site – perfectly legally in the United States, but illegal in France. Persons in France w ere able to access the site. The French Union of Jew ish Students brought suit against Yahoo! for violating France’s prohibition on Holocaust denial. The French court found a basis for taking jurisdiction of the case based on the fact of the availability of the m aterials, by dow nload, in France. 11 (2002) HCA 56. 12 As often as not, of course, Internet publishers are individuals, w riting and w orking from their ow n hom es and uploading their m aterials on their hom e personal com puters.

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O f course, this m ay not be a particularly fearsom e prospect for those Internet publishers w ho do not expect ever to find them selves in jurisdictions far from hom e w here they m ay be subject to suit. O n the other hand, it m ay w ell cause a great m any persons to think tw ice before uploading m aterial protected “at hom e” because of w hat m ay happen to them w hen they travel abroad.13 The potential for the chilling of expression, in other w ords, is considerable. A full respect for freedom of expression requires a different treatm ent for Internet publication. The Internet, as has often been noted, is a liberating tool, a tool w ith w hich ordinary individuals can reach out across the globe to com m unicate w ith others on m atters of concern to them . It is a m eans of transcending borders and differences. Yet, a rule w hich catapults the unknow n law s of unknow n places into the com m unication space of persons living in freedom -protecting countries has precisely the opposite effect: of stifling expression for fear of legal – often crim inal – liability abroad. It m ay not be perfectly clear w hat the precisely right liability rule for Internet publication is. Perhaps it is to im pose liability only w here m aterial uploaded is actionable in the jurisdiction of upload. Perhaps it is to im pose liability in those jurisdictions w here m aterials are dow nloaded provided that the author is “substantially connected” to the dow nload jurisdiction. But w hat is certain is that, in the nam e of freedom of expression at least, the newspaper rule must not be the rule of liability for Internet publishers. This article is from The Media Freedom Internet Cookbook (Vienna: O SCE, 2004). 13 Not to m ention the sim ple fact that m any Internet publishers w ill not w ish to face the possibility of having crim inal convictions or civil judgem ents entered against them in foreign jurisdictions even if they have no intention of travelling there, and even if such judgm ents w ould not be enforceable in their hom e jurisdictions.

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Cathy Wing An Intro ductio n to Internet Literacy In 1962, Canadian m edia guru Marshall McLuhan coined the phrase “global village”, to describe how, through electric technology, w e w ere becom ing increasingly linked together across the globe. The past tw o decades have seen the advent of new electronic technologies – the Internet, satellite TV, m obile phones, digital cam eras and w ireless devices – that are m aking this notion a reality. While m uch of the developing w orld still rem ains “outside” the village, m any people around the globe now w atch the sam e TV show s and m ovies, listen to the sam e m usic and access the sam e sites on the Web. In a w orld that now suffers from inform ation overload, a central m essage of McLuhan’s – the im portance of the active study of m edia – rem ains truer than ever. The challenge for educators in the tw enty-first century is to respond to m ultiple literacies, and m ore specifically, to m edia literacy – an essential skill in this age of electronic inform ation, entertainm ent and com m unications. Media literacy has been practised around the w orld for m ore than 40 years, and in m any countries, such as Canada, Australia and the UK, it has a strong presence. Canadians have alw ays felt the need to take an analytical and reflective approach to m edia, given the pervasiveness of popular culture from our close neighbours, the United States. Despite this, im plem enting m edia literacy in Canadian schools has been a fairly recent phenom enon. As recently as the 1980s, critics considered m edia literacy a “frill”. Fortunately in today’s m ultilayered, interactive inform ation society, attitudes have changed. Media literacy outcom es now form a substantial part of every Canadian province’s Language Arts curriculum . Increasingly C ATHY W ING

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school boards are understanding that if young people are to be truly literate they’re going to have to develop rigorous critical thinking skills to sift through and make sense of w hat they see, hear and read – in school and in the w ider community. Th is article w ill explore m edia literacy; w h at it is, approaches for im plem entation; and best practices for prom otion and integration into schools, hom es and com m unities. Defining Media Education and Media Literacy. UK m edia educator David Buckingham defines m edia education as the “process of teaching and learning about the m edia; m edia literacy is the outcome – the know ledge and skills learners acquire.” Media education has been called the perfect curriculum because it incorporates the latest thinking in pedagogical practice; it’s interdisciplinary; it develops critical thinking; and it is student-centred, putting the em phasis on analysis, enquiry and self-directed learning. Media education encourages an approach to m edia that is alw ays probin g: Wh o is th is m essage in ten ded for? Wh o w ants to reach this audience, and w hy? From w hose perspective is this story told? Whose voices are being heard, and w hat voices are absent? What strategies are being used to engage m y attention? Because m edia education is not about having the right answ ers but asking the right questions, the result is lifelong em pow erm ent of the learner and the citizen. Th e en d result of m edia education is a m edia literate in dividual w h o h as th e ability to read th e m essages th at are in form in g, en tertain in g, an d sellin g to h im or h er daily. It’s th e ability to brin g critical th in kin g an d life skills an d pertin en t question s to all m edia production s an d texts – from m usic videos to Web en viron m en ts, to product placem en t in film s an d virtual advertisin g on football fields. It’s about an alysin g w h at’s th ere, an d n oticin g w h at’s n ot, an d question in g w h at lies beh in d m edia production s – th e m otives, 64

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th e m on ey, th e values an d ow n ersh ip – an d h ow th ese factors in fluen ce th e con ten t. The field of m edia is broad and am orphous, extending not just from inform ation and entertainm ent m edium s such as new spapers, m agazines, television, film and the Internet, but encom passing m any areas of popular culture such as fashion, toys, the nature of celebrity, etc. Anyone attem pting to m ake sense of this area needs a clear conceptual fram ew ork that w ill allow for discussion of a variety of com plex and interrelated factors. The follow ing is a fram ew ork that is used by m any Canadian educators for the analysis of m edia m essages 1 : 1. All m edia m essages are constructed 2. The m edia construct reality 3. Audiences negotiate m eaning in the m edia 4. Media have com m ercial im plications 5. Media contain ideological and value m essages 6. Media have social and political im plications 7. Form and content are closely related in the m edia 8. Each m edium has a unique aesthetic form A non-protectionist approach key to engaging students in m edia literacy in a m eaningful w ay. Young people don’t need to be protected, but invited to participate in a dialogue about m edia. David Buckingham argues that young people shouldn’t be view ed as victim s w h o n eed to be rescued from th e excesses and evils of their culture – w hich is sim ply the intersection of high technology, m ass m edia and consum er capitalism – rather w e should focus on their em otional engagem ent w ith m edia and the genuine pleasures they receive, prom oting real questioning and analysis.2 1

J.S.J. Pungente and B. Duncan, M edia Literacy Resource Guide, O ntario Ministry of Education (Toronto, 1989).

2

R. Hobbs, “The seven great debates in the m edia literacy m ovem ent”, Journal of Communication, 1998.

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Successful Integration of Media Literacy. In 1990, participants at the UNESCO -sponsored New Directions in Media Literacy conference at the University of Toulouse, including the British Film Institute and the Council of Europe, identified four steps that are required for the successful developm ent of m edia literacy in a country’s education system : 1. The establishm ent of curriculum guidelines (nationally or regionally) by appropriate educational authorities. 2. Teacher training program m es at university level. These are degree program m es in education w ith a specific specialization or m ajor in m edia studies. 3. Teacher support – in-service educational program m es, sum m er “refresh er” courses, n ation al organ ization s through w hich teachers grow and develop in their chosen specialization – and through w hich the specialization itself evolves and develops through feedback by grass-roots teachers. 4. Educational resources for teaching – w riting, testing and publishing of the textbooks, lesson plans, activity sheets, videos or other audio-visual m aterials, posters, supplem en tal booklets, etc. n eeded for teach in g – developed in collaboration w ith all of the above.3 Canadian m edia educator John Pungente, S.J., w ho has studied m edia literacy im plem entation in various countries, has identified these additional factors as being crucial to success: 1. Media literacy, like other innovative program m es, m ust be a grass-roots m ovem ent. Teachers need to take the initiative in lobbying for its inclusion in the curriculum . 2. School districts need consultants w ho have expertise in m edia literacy, and w ho w ill establish com m unication netw orks.

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3. There m ust be appropriate evaluation instrum ents suitable to the unique attributes of m edia studies. 4. Because m edia literacy involves such a diversity of skills and expertise, there m ust be collaboration betw een teachers, parents, researchers and m edia professionals.4 Integrating Internet Literacy into Media Education. The Internet has increased the im portance of developing independent thinkers and inform ed m edia consum ers. Because the Internet has no geographical boundaries, m any regulatory and legislative standards that w e take for granted – including advertising and broadcasting to young people – do not apply. The Internet has countless publishers and few gatekeepers, so the standards for authenticity and reliability of inform ation are also absent. Third, m edia is no longer a m atter of a passive transfer of content from producer and carrier to the receiver – it is interactive in nature. And finally; m edia consum ers can now also be m edia producers and distributors. These last tw o points, specifically – interactivity and capacity for individuals to produce and distribute m edia – have fundam entally changed the role that m edia play in our society, and particularly in the lives of young people. In this new environm ent, the need for m edia literacy is m ore critical than ever. Educators play a crucial role in bridging traditional m edia education and Internet literacy, particularly as m any societies m ove tow ards the convergence of all m edia platform s – the Internet, television, radio, videos, CD RO Ms, DVDs, com puter gam es, and the m any form s of advertising – into one m ultifaceted “sm all screen” experience. 3

See Four Steps to Success in M edia Literacy, 1991 <http://w w w.m edialit.org/reading_room /article125.htm l>

4

See N ine Factors that M ake M edia Literacy Flourish, 2002 <http://w w w.m edia aw aren ess.ca/ en glish / resources/ education al/ teach in g_backgroun ders/ m edia_ literacy/9_factors.cfm>

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In a 2003 study conducted by the Media Aw areness Netw ork into young Canadians’ Internet habits, students expressed frustration w ith w hat they identified as adults’ need to control their Internet use. Efforts to keep them from being exposed to inappropriate material are ineffective they felt, because there are too m any access points and too m any places w here unsupervised exploration is possible. The Internet doesn’t w ork on the principles of censorship or control they felt, but rather on the principle of responsible decision-making. Rather than spending tim e and m oney and energy to try the im possible – keeping children aw ay from m aterial that is not suitable to their m aturity or nature – young people said that efforts should be m ade to develop opportunities, particularly for young children, to learn how to think about choices, and gain decision-m aking skills. Teachers are becom ing aw are that, along w ith learning how to navigate the Internet, young people need to develop a critical consciousness w hen dealing w ith its enorm ous range of content. Most, how ever, lack the necessary training to im plem ent Internet literacy into their day-to-day teaching. According to a 2003/04 Statistics Canada study looking at ICT infrastructure and reach in Canada’s 15,500 elem entary and secondary schools, over 97 per cent of schools w ere connected to the Internet. Less than half of school principals, how ever, felt that the m ajority of their teachers w ere adequately prepared to engage their students effectively in the use of ICT to enhance learning. There are m any obstacles to preparing teachers to m eet this dem and, including a scarcity of professional developm ent opportunities and resources to support classroom activity and the lack of pedagogical recognition by faculties of education. While w e know that teaching young people to think critically about all the inform ation available to them today is an essential skill, support w ithin the education system is m inim al or non-existent. 68

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Internet Literacy and Anti-racism Education. Central to all m edia education is the concept of representation – how w e see ourselves and how others see us. The w ay visible minorities are represented in m ainstream m edia reinforces perceptions of m inorities as outsiders, erodes the self-im age of young people from these groups and underm ines the social cohesion of society. In a m ulticultural dem ocracy, m edia education curricula m ust reflect the concerns of diversity, identity and difference. While representation, bias and stereotyping in traditional m edia have alw ays been key areas of inquiry in m edia education, the Internet presents new challenges. The Web offers easily accessible m essages of hate aim ed at ethnic and racial m in orities. A 2001 M edia Aw aren ess Netw ork survey of nearly 6,000 Canadian students, ages 9 to 17, indicates that tw o in ten youths have com e upon a site that w as “really hateful” tow ards an individual or group of people.5 In the early days of the Internet, hatem ongers tried to spread their m essages through interactive forum s. The free speech environm ent of new sgroups, how ever, ensured that false claim s w ere challenged by healthy and vigorous debate. As a result, hatem ongers soon retreated into less interactive areas of cyberspace, such as the Web, allow ing them to avoid interacting w ith those w ho disagree w ith their view s. Websites also help groups identify potential recruits w ho can be brought into the hate com m unity through private chat room s and e-m ail, w ell aw ay from the public eye. With few er opportunities for Internet users to openly con fron t h atem on gers an d debate th eir m essages, it h as becom e increasingly im portant to educate young people to recognize online hate in its m any form s and to understand the strategies used to target them . Hate on the Net is not alw ays 5

See Young Canadians In A Wired World: The Students’ View, 2001 <h ttp:/ / w w w .m ediaaw aren ess.ca/ en glish / special_in itiatives/ surveys/ ph ase_ one/students_survey.cfm >

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obvious: although hard-core sites are easy to detect, som e hatem ongers use m ore subtle tactics to attract new blood. They create fun-and-gam es sites for children and m usic sites for teens; infiltrate chat room s and new sgroups frequented by kids; and even set up sites w here children m ight go for hom ew ork assignm ents. The m ost effective long-range strategy for helping young people is to give them lots of inform ation about online hate – as w ell as the critical thinking skills to decode m essages of hate, and read betw een the lines. Promoting Internet Literacy: A Canadian Response. In 1999, the CRTC, Canada’s national broadcast regulator, issued its decision to not regulate the Internet. The decision pointed to the necessity for industry, governm ent and non-governm ental organizations to w ork together, to ensure a self-regulated environm ent and an education and aw areness approach to ensure that the new m edia environm ent provided a positive and em pow ering experience for Canada’s young people. Since then, a broad spectrum of Canadians have w orked to develop a partnership m odel involving public, profit and not-for-profit partners to deliver program m es that em pow er children and young people w ith critical thinking skills for their online activities and explorations. G overnment of Canada’s CyberWise Strategy. In February 2001, the Canadian Governm ent unveiled its strategy for dealing w ith offensive and illegal Internet content. The CyberWise Strategy focused on educating and em pow ering Canadians so they can becom e “safe, w ise and responsible” Internet users. Although Canada has strong law s that apply to cyberspace, the Governm ent of Canada acknow ledged in its strategy that legislation alone w ill not solve the problem s of illegal and offensive content on the Internet and identified “aw areness, education and know ledge” as the foundations of its approach. 70

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Media Aw areness Netw ork (MNet), a not-for-profit organization th at supports m edia education in Can adian h om es, schools and com m unities, w as recognized in the CyberWise Strategy as the leading public education organization w orking in this area.6 Research into Young Canadians’ Internet Use. To m aintain critical vigour and the ability to adapt to rapid changes in the new technologies, Internet literacy dem ands ongoing, indepth research. In 2000 to 2001, the Media Aw areness Netw ork (MNet) conducted the m ost com prehensive and w ideranging survey of its kind in Canada in order to gain a fuller and deeper understanding of issues, behaviours and attitudes related to Internet use by young people. Phase I of the Young Canadians In A Wired World (Y CW W ) research project, w hich w as funded by the Federal Governm ent, included both qualitative and quantitative findings and com prised: •

a telephone survey of 1,080 Canadian parents w ith a hom e com puter;

focus groups of parents and children (aged 9–17);

a survey of 5,682 students in grades 4 to 11 across Canada.

The survey results reinforce the fact that Canadian youth are highly engaged participants in the online w orld. How ever, the data also presents findings w hich show that, in this age of connectivity, there is a substantial discrepancy betw een how parents see their children using the Internet, and w hat their children are actually doing online. The research findings from Y CW W Phase I attracted the attention of num erous com m unities of interest and served as a call to action to address the risks and challenges of new m edia use by young people. The benefits that Canada derived from 6

Cyberw ise Strategy: <http://w w w.media-aw areness.ca/english/special_initiatives/ surveys/phase_one/index.cfm >

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the research have been extensive. Data collected from Y CW W contributed to: •

Internet policies in Canadian schools and public libraries;

governm ent policy-setting (including the Governm ent of Canada’s policy statem ent on Illegal and O ffensive Content on the Internet);

an extensive Internet education program m e to educate teachers, parents, librarians and students how young people can get the m ost out of new technologies w hile being safe and responsible Internet users.7

In autum n 2003, Media Aw areness Netw ork em barked on Phase II of YCWW w ith a series of national focus groups w ith young people and parents. This qualitative research, funded by Industry Canada, show ed a media landscape that has evolved significantly since 2001. In 2005 MNet w ill return to the classrooms from YCWW Phase I and survey another 6,000 students in order to revisit the benchmark measures from the original data and assess how patterns of use and attitudes have changed.8 Web Awareness Canada. In 1999, the Media Aw areness Netw ork (MNet) launched an Internet public aw areness program m e, Web Awareness Canada. The objective of this initiative w as to ensure that public librarians and educators w ere inform ed about the challenges and opportunities that young people face w hen they go online and to ensure that adults are m ore inform ed and confident in supporting young people’s use of Internet and ICT. The focus of the program m e w as to build partnerships in schools and libraries – the first public sectors to be com pletely connected to the Internet – by training teachers and librarians, and building the capacity in those sectors for decentralized local and regional delivery of the program m e. Web Awareness Canada has received aw ards and international recognition for prom oting and fostering the positive use 72

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of ICT in the education and com m unity sectors. Perhaps m ost im portantly, provincial governm ents have purchased licences for these w orkshops, allow ing thousands of teachers, librarians, parents, com m unity leaders and health w orkers across Canada to use the Web Awareness w orkshops as part of their professional developm ent and self-directed learning program m es. Canadian Library Association (CLA) Initiatives.Canada’s libraries are w ell connected – 98 per cent are linked to the Internet, and over 90 per cent provide public access to their patrons. In recent years, the Canadian Library Association (CLA), a national English library association, has taken a leadership role on the issues related to Internet access in public libraries. In Canada, m any public libraries have com e under fire for offering unfiltered Internet access and have subsequently found their relationships of trust w ithin their com m unities underm ined. Librarians now find their traditional role as protectors of the free flow of inform ation m easured against the protection of their patrons, and in particular children, from offensive and potentially illegal online content. Th e CLA Statem en t on In tern et Access, en courages libraries to “offer Internet access w ith the few est possible restrictions” and to “assum e active leadership in com m unity aw areness of, and dialogue on, the issues inherent in the informed use of this essential, yet non-selective and unregulated m edium in libraries.”9 7

Canada’s Children In A Wired World: The Parents’ View : <http://w w w.media-aw areness.ca/english/special_initiatives/surveys/phase_one/ parents_survey.cfm > Young Canadians In A Wired World: The Students’ View : <http://w w w.media-aw areness.ca/english/special_initiatives/surveys/phase_one/ students_survey.cfm >

8

Young Canadians In A Wired World – Phase II, Focus Groups: <http://w w w.media-aw areness.ca/english/special_initiatives/surveys/phase_tw o/ upload/yccw w _phase_tw o_report.pdf>

9

Canadian Library Association, Internet Service in Public Libraries – A Matter of Trust. Net Safe/Net Sm art: Managing and Com m unicating about the Internet in the Library, 2001. Available at: <http://w w w.cla.ca/netsafe/index.htm >

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The CLA developed an initiative, centred on the Web Awareness w orkshop series, in co-operation w ith MNet, to deliver Internet education in public libraries across Canada. The program m e provides professional developm ent for library staff, w ho in turn raise aw areness of Internet issues am ong those accessing the Internet from public libraries. In response to dem and from libraries, MNet produced a Parenting the N et Generation w orkshop to present to the public. In February 2003 and 2004, the CLA, in partnership w ith the Media Aw areness Netw ork (MNet) and Bell Canada (one of Canada’s largest Internet service providers) proclaim ed a national Web Awareness Day. The purpose of the event w as to build public aw areness of Internet literacy and of the role being played by Canada’s public libraries. To celebrate Web Awareness Day libraries around the country prom oted Internet literacy through open houses, w orkshops on safe Internet use and other special events, as w ell as handing out inform ation pam phlets and other materials for parents. Public libraries used Web Awareness Day as a positive opportunity to deliver the m essage that they are ready to support parents and com m unities in teaching young Canadians literacy skills for the tw enty-first century. Be Web Aware Campaign. Much w ork needs to be done in em pow ering adults to address Internet issues in hom es, schools and com m unities. This is especially true for parents, w ho are frustrated w ith w hat they see as the negative aspects of the technology and w ith their inability to control w hat their children are accessing and doing online. If parents are to be effective Internet gatekeepers for their children, they’re going to need trem endous advice, guidance and support from the education system , governm ent and industry. In 2004, M edia Aw aren ess Netw ork w ith M icrosoft Canada and Bell Canada, and a coalition of leading Canadian organizations, launched Be Web Aware – a national, public 74

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education campaign on Internet safety.10 The goal of the Be Web Aware initiative is to raise aw areness amongst parents that there are safety issues w hen their children go online and that they need to get involved. The Be Web Aware initiative includes public service announcements (PSAs) on television, radio, print and outdoor media that direct parents to a comprehensive Be Web Aware w ebsite. The site, developed by Media Aw areness Netw ork, is full of information and tools to help parents teach their children to handle the potential risks associated w ith going online. Every day, each of us assim ilates, evaluates, and controls im m ense am ounts of data and diverse m essages in a com plex inform ation and entertainm ent culture. Given this clim ate, it m akes sense that w e expand the notion of w hat it is to be literate beyond the lim its of the traditional areas of reading, w riting and num eracy, to include inform ation, visual, and m edia literacy. Young people today use technology for entertainm ent, to learn, to research, to buy and to com m unicate. Governm ents, industry, education and library sectors realize that the thinking m ust change regarding the im portance of traditional literacies â&#x20AC;&#x201C; not to upstage them â&#x20AC;&#x201C; but rather to encom pass all the lifelong learning skills that young people require for the m anagem ent and understanding of inform ation and m essages that they receive, create and repurpose. This article is from The Media Freedom Internet Cookbook (Vienna: O SCE, 2004).

10 Be Web Aw are: <http://w w w.bew ebaw are.ca>

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Gus Hosein O pen So ciety and the Internet: Future Pro spects and Aspiratio ns

We once dream ed about the future. It involved a global inform ation infrastructure that w as not ham pered by borders and governm ents. Hum an potential w ould reach beyond its prior lim its as w e com m unicated w ithout interference in a space that w as separate from flesh and steel. The Internet w ould set truth free, and w e w ould follow. And this truth and liberty are required for the m aintenance of an open society. In an open society, social actors yearn for im proving society, know ing that no one has perfect know ledge or control of the outcom e of decisions – thus creating a space for further actors to join in and participate. It is taken for granted that actors are able to contribute, to participate, and to subm it their ideas for consideration. It is far too often taken for granted that the m arketplace of ideas w ill be filled w ith m erchants vying for attention. It is far too often taken for granted that w e have the ability to interact, to com m unicate, to speak freely. The Internet w as supposed to be the veins through w hich this lifeblood could sustain an open society. I have no intention of m ocking the Free Internet im age of the future. Although it is com m on to argue that w e w ere ignorant w hen w e had that dream , such hindsight is uninteresting. I am m ore interested in the questions of “Why did w e w ant that dream to be true?” and “What w as it that w e w ere once seeking that w e seem to be so far aw ay from now ?” We Sought in Technology What We Were Promised. Before the popularization of the Internet, the m edia w orld w as relatively stable. Film and broadcasting industries w ere regulated w ith G US H O SEIN

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regards to w hat they could show, and ratings schem a applied. Print and new spaper m edia w ere regulated through liability regim es, codes of practices, and ow nership regim es, am ongst other form s of intervention into the m arketplace of ideas. And borders w ere reasonable constraints on the flow of inform ation, w here books and other m aterial could be stopped at borders in accordance w ith national law s. Yet w e w ere prom ised so m uch m ore, and w e heard of the potential of that prom ise. Free speech and free expression w ere long heralded values, core beliefs, and rights. Freedom of speech w as enshrined in constitutional docum ents, international charters, and sustained in jurisprudence. The law took som e tim e to com e around, how ever. Consider a case in the United States, decided in the Suprem e Court in 1919. The case involved five Russians in the United States w ho w ere accused of violating the Espionage Act for conspiring w ith the Im perial Governm ent of Germ any. The conspiracy took the form of printing, w riting and distributing copies of a leaflet entitled “Revolutionists Unite for Action” and “The Hypocrisy of the United States and her Allies” that criticized the US Governm ent’s attitudes tow ards Soviet Russia, calling upon “w orkers” for solidarity and to strike, and to fight. The Court sided w ith the Governm ent, contending that w hile the im m ediate occasion for this particular outbreak of law lessness, on the part of the defendant alien anarchists, m ay have been resentm ent caused by our governm ent sending troops into Russia as a strategic operation against the Germ ans on the eastern battle front, yet the plain purpose of their propaganda w as to excite, at the suprem e crisis of the w ar, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of em barrassing and if possible defeating the m ilitary plans of the governm ent in Europe.1 78

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The country, after all, w as at w ar. In a fam ous dissenting opinion, Suprem e Court Justice, O liver Wendell Holm es argued that the accused w ere not im peding the w ar by expressing their opinions. [I]t is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular governm ent – not to im pede the United States in the w ar that it w as carrying on.

Controversially, he argued: Persecution for the expression of opinions seem s to m e perfectly logical. If you have no doubt of your prem ises or your pow er and w ant a certain result w ith all your heart you naturally express your w ishes in law and sw eep aw ay all opposition. To allow opposition by speech seem s to indicate that you think the speech im potent, as w hen a m an says that he has squared the circle, or that you do not care w hole heartedly for the result, or that you doubt either your pow er or your prem ises. But w hen m en have realized that tim e has upset m any fighting faiths, they m ay com e to believe even m ore than they believe the very foundations of their ow n conduct that the ultim ate good desired is better reached by free trade in ideas – that the best test of truth is the pow er of the thought to get itself accepted in the com petition of the m arket, and that truth is the only ground upon w hich their w ishes safely can be carried out.

With this statem ent he opened discussion on the “m arketplace of ideas” and the im portance of speech and contestation. Holm es’s w ords w ere m ost surprising because he w as behind tw o court decisions in the previous year that took harsh view s of freedom of expression during w ar tim e.2 This change of 1

ABRAM S v. US, 250 US 616 (1919).

2

Peter Irons, A People’s History of the Supreme Court (Penguin, 1999).

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faith reflected conversations he held w ith others in the m eantim e, and also that the w ar w as over by the tim e of the decision. He concludes: That at any rate is the theory of our Constitution. It is an experim ent, as all life is an experim ent. Every year if not every day w e have to w ager our salvation upon som e prophecy based upon im perfect know ledge. While that experim ent is part of our system I think that w e should be eternally vigilant against attem pts to check the expression of opinions that w e loathe and believe to be fraught w ith death, unless they so im m inently threaten im m ediate interference w ith the law ful and pressing purposes of the law that an im m ediate check is required to save the country.3

In declaring this he revised his earlier opinion that falsely scream ing fire in a theatre w as w orthy of infringing First Am endm ent rights to free speech, calling instead for such infringem ent to occur only in the case of im m inent threats and im m ediate interference. The essence of this dissent w as adopted by the Suprem e Court 50 years later. Even before that, how ever, the prom ise of speech and protecting its conditions grew greater. In a 1960 court decision in the case Talley v. California, the US Suprem e Court upheld the right to anonym ous pam phleteering. This case involved a Los Angeles city ordinance restricting the distribution of handbills. The ordinance required the nam ing of the person w ho w rote, printed, and distributed the handbill. The petitioner, Talley, w as arrested and tried for violating this ordinance w ith handbills urging readers to boycott against certain m erchants and businessm en on the grounds that they carried products of “m anufacturers w ho w ill not offer equal em ploym ent opportunities to ‘Negroes, Mexicans, and O rientals’.” The Suprem e Court supported Talley, arguing that

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Anonym ous pam phlets, leaflets, brochures and even books have played an im portant role in the progress of m ankind. Persecuted groups and sects from tim e to tim e throughout history have been able to criticize oppressive practices and law s anonym ously. The obnoxious press licensing law of England, w hich w as also enforced on the Colonies w as due in part to the know ledge that exposure of the nam es of printers, w riters and distributors w ould lessen the circulation of literature critical of the governm ent. The old seditious libel cases in England show the lengths to w hich governm ent had to go to find out w ho w as responsible for books that w ere obnoxious to the rulers. John Lilburne w as w hipped, pilloried and fined for refusing to answ er questions designed to get evidence to convict him or som eone else for the secret distribution of books in England. Tw o Puritan Ministers, John Penry and John Udal, w ere sentenced to death on charges that they w ere responsible for w riting, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought dow n on them prosecutions by Englishcontrolled courts. (...) It is plain that anonym ity has som etim es been assum ed for the m ost constructive purposes.4

A sim ilar decision em erged 35 years later that contended that there w as a m arketplace of ideas, as prom ised by O liver Wendell Holm es in 1919. In 1995, the Suprem e Court decided that anonym ous pam phleteering w as protected under the Constitution, in M cIntyre v. O hio. The interest in having anonym ous w orks enter the m arketplace of ideas unquestionably outw eighs any public interest in requiring disclosure as a condition of entry. Accordingly, 3

ABRAM S et al. v. UN ITED STATES.

4

Talley v. California, Suprem e Court of the United States, 362 US 60, decided 7 March 1960.

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an author’s decision to rem ain anonym ous, like other decisions concerning om issions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Am endm ent.5

Beginning w ith a dissent, and then adopted into m ainstream jurisprudence, free expression is considered as a key com ponent to a functioning dem ocracy, and som ething that should be upheld, prom oted, and protected. This is even the case w hen it involves anonym ous speech. Law Unto the Internet. Th e prin tin g press w as h eralded because it democratized publishing, decentralizing pow er to all those w ho ow ned printing presses. This w as not everyone, obviously. As such, the ability of individuals to rise and speak freely w as inhibited by the lack of technology available to all. The prom ise of the Internet changed this. Everyone w as potentially a printing press. Everyone could broadcast inform ation, and could be the recipient of broadcasts, one-to-one, m an y-to-on e an d on e-to-m an y form s of com m un ication s. And this w as to be beyond the reach of legislatures, courts, and others w ho w ished to im pede the flow of inform ation. And no one w ould know if you w ere a dog w hilst on the In tern et due to prom ises of privacy an d an on ym ity. We w anted an infrastructure that could sustain our liberties, and believed that the Internet w ould be it. It alm ost w as. A m ost celebrated case is the fate of the Com m unications Decency Act, passed by the US Congress in 1996. The law required access control m echanism s on sites that m ade “indecent” inform ation available to the general public, to verify the age of visitors. The constitutionality of the CDA w as questioned im m ediately. According to David Sobel, a leading expert on the m atter, Whether the m illions of individuals visiting sites on the Internet are seeking inform ation on teenage pregnancy, 82

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AID S an d oth er sexually tran sm itted diseases, classic w orks of literature or avant-garde poetry, they enjoy a Constitutional right to do so privately and anonym ously. The CDA seeks to destroy that right.6

The US District Court injunction on the CDA used similar ideas. Anonymity is important to Internet users w ho seek to access sensitive information, such as users of the Critical Path AIDS Project’s Web site, the users, particularly gay youth, of Q ueer Resources Directory, and users of Stop Prisoner Rape (SPR). Many m em bers of SPR’s m ailing list have asked to rem ain anonym ous due to the stigm a of prisoner rape.

The Act w as eventually struck dow n on the grounds of identity, anonym ity, and free speech. According to the District Court decision, “any content-based regulation of the Internet, no m atter how benign the purpose, could burn the global village to roast the pig”, and this w as “due to the nature of the Internet.” That is, There is no effective w ay to determ ine the identity or the age of a user w ho is accessing m aterial through e-m ail, m ail exploders, new sgroups or chat room s. An e-m ail address provides no authoritative inform ation about the addressee... Th ere is also n o un iversal or reliable listin g of e-m ail addresses and corresponding nam es or telephone num bers, and any such listing w ould be or rapidly becom e incom plete. For these reasons, there is no reliable w ay in m any instances for a sender to know if the e-m ail recipient is an adult or a m inor.7 5

M cIntyre v. O hio Elections Commission, Suprem e Court of the United States, No. 93-986, decided 19 April 1995.

6

Electronic Privacy Information Center, “Internet ‘Indecency’ Legislation: An Unconstitutional Assault of Free Speech and Privacy Rights” (Washington DC, 1996).

7

American Civil Liberties Union et al. v. Janet Reno Civil Action No. 96–963, In The United States District Court for the Eastern District O f Pennsylvania.

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At the Suprem e Court, the m ajority concurred. This dynam ic, m ultifaceted category of com m unication includes not only traditional print and new s services, but also audio, video, and still im ages, as w ell as interactive, real-tim e dialogue. Through the use of chat room s, any person w ith a phone line can becom e a tow n crier w ith a voice that resonates farther than it could from any soapbox. Through the use of Web pages, m ail exploders, and new sgroups, the sam e individual can becom e a pam phleteer. As the District Court found, “the content on the Internet is as diverse as hum an thought.”8

The Internet w as the new est incarnation of the “press” that the Founders of the US had envisioned w hen they adopted the Constitution, and thus w as w orthy of all the protections from incursions under the First Am endm ent. The Suprem e Court concluded: The Governm ent apparently assum es that the unregulated availability of “indecent” and “patently offensive” m aterial on the Internet is driving countless citizens aw ay from the m edium because of the risk of exposing them selves or their children to harm ful m aterial. We find this argum ent singularly unpersuasive. The dram atic expansion of this new m arketplace of ideas contradicts th e factual basis of th is con ten tion . Th e record dem onstrates that the grow th of the Internet has been and continues to be phenom enal. As a m atter of constitutional tradition, in the absence of evidence to the contrary, w e presum e that governm ental regulation of the content of speech is m ore likely to interfere w ith the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a dem ocratic society outw eighs any theoretical but unproven benefit of censorship. 84

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The m arketplace of ideas seem ed secured from extraneous interference of censorship and content controls. This all probably appears to be a bit dramatic, how ever. Consider the Abrams case: w e w ere really talking about controversial political speech at a time of w ar. Certainly that deserves some constitutional scrutiny and protection. Similarly, the Talley case involved anonymous pamphleteering regarding racially discriminatory hiring practices at companies; and proportionately, the Supreme Court decision referred to dramatic transgressions upon expression in history as the root of oppression. But w hen it came to the CDA, this involved a law that merely restricted access to pornography. Why did everyone get so excited, speaking of pigs, and the marketplace of ideas, just because of mechanisms to restrict access to pornography? My answ er to that question is quite sim ple, and perhaps sim plistic. We, and I count m yself am ongst those w ho opposed the CDA, saw this as the first step to greater controls. It is a case of the ever-articulated “slippery-slope” argum ent: if you begin w ith one form of content regulation, even w ith the m ost noble intents the rest w ill naturally follow. O ther form s of regulation w ill arise either intentionally, through using the “verification” technologies to verify som eone’s geographic location to prevent access to non-indecent inform ation, or less directly through the chilling of online speech for fear of surveillance or eventual censoring. We Are Left with Strengthened Politics. Despite the “victory” in the CDA decision, the incursions upon free expression contin ued. Regardless of calls by experts, tech n ologists, an d law yers that the Internet w ould not respond w ell to content regulation, content regulation follow ed nonetheless.

8

Reno v. ACLU, 26 June 1997, 521 US 844.

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Even in th e CD A decision , w e w ere w arn ed th at th e tech n ology of th e In tern et could be ch an ged. Th e tech n ology could be sh aped, th e structure of th e m arket altered, to perm it cen sorsh ip. Accordin g to th e dissen tin g opin ion from Justice O ’Con n or: Cyberspace differs from the physical w orld in another basic w ay: Cyberspace is m alleable. Thus, it is possible to construct barriers in cyberspace and use them to screen for identity, m aking cyberspace m ore like the physical w orld and, consequently, m ore am enable to zoning law s. This transform ation of cyberspace is already underw ay. (...) Internet speakers (users w ho post m aterial on the Internet) have begun to zone cyberspace itself through the use of “gatew ay” technology. Such technology requires Internet users to enter inform ation about them selves – perhaps an adult identification num ber or a credit card num ber – before they can access certain areas of cyberspace m uch like a bouncer checks a person’s driver’s license before adm itting him to a nightclub. Internet users w ho access inform ation have not attem pted to zone cyberspace itself, but have tried to lim it their ow n pow er to access inform ation in cyberspace, m uch as a parent controls w hat her children w atch on television by installing a lock box. This user-based zoning is accom plished through the use of screening softw are (such as Cyber Patrol or SurfWatch) or brow sers w ith screening capabilities, both of w hich search addresses and text for keyw ords that are associated w ith “adult” sites and, if the user w ishes, blocks access to such sites.9

Slow ly the m arketplace of ideas could be chipped aw ay at, through law, and other m echanism s. Filtering technology em erged and is now enshrined in law s and policies in a num ber of countries, calling for their use at the end-user level (e.g. Australia), at service providers (e.g. 86

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US schools and libraries), and at the national level (e.g. China and Saudi Arabia). Whether through direct regulation of individuals’ conduct or indirect regulation of Internet service providers, censorship is occurring. In the United Kingdom , m obile phone providers are now filtering access to pornographic content in order to prevent children from accessing these sites. An adult custom er w ould have to contact the phone com pany to prove her age.10 There are other m echanism s, how ever. Notice and takedow n procedures are being im plem ented into a num ber of law s in a num ber of countries. The United Kingdom is particularly proud of the regim e for preventing access to crim inally obscene m aterial, enforced by a self-regulating Internet Watch Foundation. The IWF is now supporting other countries in copying the UK’s success. But w hat starts w ith “crim inally obscene” for the protection against child pornography w ill soon be used for other purposes. A num ber of countries in Continental Europe have harsh regim es to com bat xenophobia by requiring the takedow n of online m aterial. “Notice and takedow n” requests are used now for the protection of “copyright”. A recent study by the Dutch NGO Bits of Freedom found that, w hen com bined w ith the European ECom m erce Directive that placed liability for illegal content upon w ebsite-hosting providers, the effects of copyright protection law s upon free speech are increasingly dangerous. Bits of Freedom tested ten Dutch ISPs on their practices of notice and take dow n by creating a num ber of w ebsites quoting a text w ritten by Multatuli, a fam ous author, in 1871. The text is clearly som ething that belongs to the public dom ain, and is no longer subject to copyright protection. Bits of Freedom then filed com plaints to the ISPs on behalf of a fake society that w as 9

Justice O ’Connor, Reno v. ACLU, 521 US 844.

10 BBC New s, “Mobile censorship” for under-18s, 19 January 2004.

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created to act as a copyright holder. Seven providers rem oved the text w ithout even looking at the w ebsite, â&#x20AC;&#x153;or dem onstrating any clue about copyright basicsâ&#x20AC;?. O ne provider w ent so far as to send all the personal details of their custom er to the com plainant, breaching privacy protections.11 Copyright law s are the creature of increased lobbying by increasingly pow erful content production industries. This is a different form of politics from the politics of child protection that led to the CDA. Both political stratagem s, how ever, rely on personal inform ation. Sim ultaneously, w e are seeing a return of the politics that led to the decision in Abram s, in policies and initiatives to com bat terrorism . This strategy also relies on the reduction of privacy. Politics of Surveillance-Enabled Censorship. While the CDA decision noted the challenges in requiring age verification, the m inority opinion noted that technology is m alleable and can be shaped to m eet the concerns of those w ho w rote the CD A. For a reason ably-regulated In tern et, all w e w ould require is every user to disclose her nam e and country of residence (and even state/province), age, and then bind that in form ation to h er n etw ork in form ation (e.g. IP address, account num ber at ISP). The judges w ho decided that the CDA w as unconstitutional argued that no such infrastructure of personal inform ation disclosure existed at the tim e. The dissenting justice said that it is possible to do w hat the CDA envisioned. A French Court m ade an analogous argum ent in 2000 w hen it required Yahoo! to prevent French netw ork users from accessing m essage boards w here users can trade in Nazi m em orabilia. O n the other hand, a US Federal court struck dow n a Pennsylvania law that forced Internet service providers to block access to sites thought to be distributing child pornography, by filtering the IP addresses.12 Because over 80 per cent of 88

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w ebsites on the Internet are served from IP addresses that are shared am ongst sites, it w as argued that the law overblocked legitim ate sites. The court agreed w ith this contention, concluding that w ith the current state of technology, the Act cannot be implemented w ithout excessive blocking of innocent speech in violation of the First Am endm ent.13

These three decisions all have differing conceptions of the technology. Technology can be constructed to lim it access, accordin g to th e dissen ters in th e CD A decision an d th e French court, w hile in the Pennsylvania case the technology to lim it access also lim ited access to protected speech, and w as thus unconstitutional. If every user w as compelled to disclose this information, these regulations could w ork. Then if she w as under 18 she could not access pornography; if she w as from France, she could not access sites that trade in Nazi memorabilia. The Pennsylvania problem does not go aw ay in her case, but if w e also required that all those w ho speak (and set up w ebsites) must first identify themselves, then it is likely that he w ould risk prosecution. It is also possible that if they both knew that this level of information w as available and required in order to speak and gain access to speech, they w ould probably not bother in the first place. This is the w ay that surveillance can act as prior restraint, chilling free speech by threatening surveillance. This is in essence w hat is occurring currently in the surveillance of subscriber and traffic data, but is being exhibited in tw o different w ays on both sides of the Atlantic O cean. In 11 Sjoera Nas, Bits of Freedom, The M ultatuli Project: ISP Notice & take down, 1 O ctober 2004. 12 Tom Zeller Jr., Court Rules Against Pennsylvania Law That Curbs ChildPornography Sites, 11 Septem ber 2004. 13 Center for Democracy & Technology v. Pappert, United States District Court for the Eastern District of Pennsylvania, No. 03-5051, 10 Septem ber 2004.

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North Am erica, under claim s of copyright infringem ent, content-producing industry associations such as the Motion Picture Association of Am erica (MPAA), the Recording Industry Association of Am erica (RIAA), and the Canadian Recording Industry Association (CRIA) are approaching ISPs to dem and subscriber inform ation based on IP addresses. That is, the RIAA and the MPAA are capturing IP addresses of individual users and approaching ISPs so that they w ill disclose custom er inform ation, inform ing the RIAA and MPAA w hich user w as using w hat IP address at w hat m om ent. O nce legal avenues are opened to allow industry associations access to this inform ation, these sam e avenues w ill be used by others. In so doing w e w ill increase the use of subscriber inform ation and other sensitive inform ation for any num ber of purposes. In Europe, th e surveillan ce of traffic data is n ot yet focused on copyright infringem ent policies, but it soon w ill be, and w hen com bined w ith anti-terrorism policies, it could be disastrous. Currently various governm ents in the European Union are establishing national policies that com pel com m unications service providers (telephone com panies [land and m obile], ISPs, etc.) to retain their traffic data logs. Under previous law, these service providers w ould have to delete this personal inform ation once it w as no longer necessary for billing or engineering purposes. Now in countries like Italy, France, and the United Kingdom , service providers w ill have to retain this inform ation regarding usersâ&#x20AC;&#x2122; e-m ail, Internet and telephone habits (and locations) for periods ranging betw een one and five years. The UK, France, Ireland and Sw eden are also pushing for this policy to be adopted at the EU, thus obliging all countries to com pel all com m unications providers throughout Europe to keep this inform ation for a num ber of years, just in case on e day th is in form ation is of value to law enforcem ent authorities. 14 90

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The surveillance of subscriber and traffic data is tantam ount to the collection and tracking of all hum an conduct in the Inform ation Society: w ho w e speak w ith, w ho w e m ove w ith, w hat w e look for, w here w e receive information from, and w here w e send it to. As a result of these policies, European users of the Internet w ill have to grow accustom ed to the idea that their actions w ill be logged for a num ber of years and accessible to any governm ent that is interested, and possibly others. North Am erican users live under the threat of their personal inform ation being divulged to the content industry w hich w ould result in further legal proceedings. If the users are aw are of these policies and m echanism s it could chill their ability to create and im part inform ation, ham pering their right to free speech. They w ould be less likely to consult “controversial” inform ation for fear that it w ill eventually be used against them . O n the other hand, if they are unaw are of these policies the users w ill not be changing their conduct in the face of one of the largest threats to personal privacy in the m odern era. The Politics of Security-Induced Censoring. An increasingly com m on argum ent for creating structures to lim it free expression is that it w ill aid in the w ar on terror. Som e countries have returned to the public state of fear in w hich the US found itself at the tim e of the Abrams case during the First World War. Governm ents have called for stricter rules, greater pow ers, and increased funding to com bat terrorism , and it w as inevitable that these changes w ould have effects on free expression. There are m any instances of countries announcing the “takedow n” of w ebsites hosting “radical” Islam ist m aterial. In reaction to the assassination of a Dutch film director, Belgium announced its intention to shut dow n certain Islam ic w ebsites 14 Privacy International, Invasive, Illusory, Illegal, and Illegitimate: Privacy International and EDRi Response to the Consultation on a Framework Decision on Data Retention, 15 Septem ber 2004.

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and closely m onitor radio program m es prom oting violence. 15 A num ber of anti-terrorism law s introduced around the w orld involved curbing hate speech. In reaction to threats m ade on w ebsites or the posting of m essages from terrorists, w ebsites have been rem oved or their contents blocked. It is likely that the w ebsite logs w ere also seized in this process. O ne exam ple of this is w hat happened to Indym edia. The Independent Media Center is an international new s netw ork of individuals, independent and alternative m edia activists and organizations. O n 7 O ctober 2004 its servers w ere seized from the London office of Rackspace, a server-hosting firm . The loss of these servers resulted in the rem oval of content from tw enty new s w ebsites. Rackspace received a US Court order to hand over the servers in London. According to the General Secretary of the National Union of Journalists in the UK To take aw ay a server is like taking aw ay a broadcasterâ&#x20AC;&#x2122;s transm itter. It is sim ply incredible that Am erican security agents can just w alk into a London office and rem ove equipm ent.16

The reason for the seizure rem ains under seal, and no US law enforcem ent agency has taken responsibility for the investigation into Indym edia. No UK law enforcem ent authorities w ere involved in the seizure, even though it took place in London. A public prosecutor in Italy adm itted that she did request the IP logs from the server through a request to the Am erican authorities, on grounds of com bating terrorism . There w as apparently also a request from the Sw iss authorities, but this cannot be confirm ed either.17 This is the new face of censorship. Another example of a law developed to combat terrorism that increased surveillance at ISPs is the USA PATRIO T Act, passed by the US Congress in O ctober 2001. Under the USA PATRIO T Act, the Federal Bureau of Investigations may demand inform ation from Internet service providers by show ing a 92

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“national security letter”, w ithout any judicial oversight. ISPs are then required to comply and are gagged from disclosing their compliance. The NSLs are issued w ithout any judicial review, or any requirement to show individualized suspicion, compelling need, and it cannot be contested.18 The American Civil Liberties Union challenged this procedure on many grounds including that it chilled First Amendment rights. In September 2004 a US District judge agreed. Referring to Talley v. California, and other decisions on restraint on freedom of association, The Court concludes that such First Am endm ent rights m ay be infringed [...] in a given case. For exam ple, the FBI theoretically could issue to a political cam paign’s com puter system operator a [...] NSL com pelling production of the nam es of all persons w ho have em ail addresses through the cam paign’s com puter system s. The FBI theoretically could also issue an NSL [...] to discern the identity of som eone w hose anonym ous online w eb log, or ‘blog,’ is critical of the Governm ent. [...] These prospects only highlight the potential danger of the FBI’s self-certification process and the absence of judicial oversigh t. 19

The Court also argued that “transactional records” deserve privacy protection , despite existin g jurispruden ce on telephone traffic and bank records that leaves Internet traffic data in legal lim bo: 15 Reuters, “Mosques, Islam ic school attacked in the Netherlands”, Financial Times, 8 Novem ber 2004. 16 Indym edia UK, Ahimsa Gone and Returned: Responses to the Seizure of Indymedia Harddrives, 09.11.2004 19:56. 17 Electronic Frontier Foundation, Indym edia Server Seizures <http://eff.org/Censorship/Indym edia/> 18 Anita Ram asastry, W hy the Court Was Right to Declare a USA Patriot Act Provision Dealing with N ational Security Letter Procedures Unconstitutional, FindLaw Legal Com m entary, 13 O ctober 2004. 19 John Doe, ACLU v. Ashcroft, 04 Vic. 2614, United States District Court Southern District of New York, 28 Septem ber 2004.

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NSLs can potentially reveal far m ore than constitutionallyprotected associational activity or anonym ous speech. By revealing the w ebsites on visits, the Governm ent can learn, am ong m any other potential exam ples, w hat books the subscriber enjoys reading or w here a subscriber shops.

Without judicial review, the Court concluded, this pow er w as unconstitutional. Surveillance has indeed been used to lim it political activity. These policies are not lim ited to online activity either. Surveillance has been used as a coercive m easure to prevent or disable free assem bly. In August 2004 the UK Appeals Courts approved of the United Kingdom Governm entâ&#x20AC;&#x2122;s use of stop and search pow ers at protests. This involved a case w here police stopped-and-searched attendees of a protest outside an arm s fair in London. The police w ere em pow ered to stop and search anyone in the city of London w ithout any precondition of reasonable grounds of suspicion. During the course of the case, it w as discovered that since February 2001, this authority, granted to the Governm ent under the Terrorism Act 2000, has been in effect on a rolling basis.20 Sim ilarly, in the sum m er of 2004 during the Am erican political cam paign season, anti-terrorism pow ers w ere used against protestors at the presidential conventions. First the FBI w ould surveil activists using the Internet, and then interrogate activists before the conventions.21 Later, at the Republican Convention, New York police routinely fingerprinted 1,500 people arrested during the convention. This fingerprinting had the effect of delaying the release of detainees.22 In another Am erican case, police installed m etal detectors to scan protestors at an annual protest at the School of the Am ericas in Georgia. O n average 15,000 people attend these yearly protests, and in the 13 years of protests, no w eapons have ever been found and no protestor ever arrested for an act 94

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of violence. A w eek before the Novem ber 2002 protest, the City of Colum bus instituted police requiring all protestors to subm it to a m etal detector search at a checkpoint aw ay from the protest site. If m etal w as detected in the scan, the police w ould search through the protestor’s belongings. The City claim ed that the decision w as due to the elevated risk of terrorist attack, prior “law lessness”, and problem atic “affinity groups”. The Circuit Court in this decision, know n for often conservative decisions,23 decided that the practice violated the Fourth Am endm ent to be free of “unreasonable search and seizures” as “there is no basis for using Septem ber 11 as an excuse for searching the protestors”, and “Septem ber 11, 2001, already a day of im m easurable tragedy, cannot be the day liberty perished in this country.” The Court also found that the practice violated the First Am endm ent by burdening free speech and association, that the checkpoints and searches w ere a form of prior restraint, and that the policy w as contentbased in that it w as geared tow ards these protestors on this issue. Finally, the Court concluded that the search constituted “an ‘unconstitutional condition;’ protestors w ere required to surrender their Fourth Am endm ent rights in order to exercise their First Am endm ent rights.”24 In the com ing m onths and years m ore decisions w ill em erge from courts around the w orld, and they are equally as likely to conflict w ith one another as they are to lead to a renew ed right to free expression. Each case and every decision 20 Privacy International, UK Appeals Court Approves Stops and Searches at Protests, 8 August 2004. 21 ACLU, ACLU Denounces FBI Tactics Targeting Political Protesters, 16 August 2004. 22 Diane Cardw ell, “City Challenged on Fingerprinting Protesters”, The N ew York Times, 5 O ctober 2005. 23 C.G. Wallace, “Screening of Protesters Unconstitutional, Court Rules”, Associated Press published in Washington Post, 17 O ctober 2004. 24 Bourgeois et al. v. Peters et al., United States Court of Appeals for the Eleventh Circuit, No. 02-16886, 15 O ctober 2004.

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highlights the tightening relationship betw een surveillance and censorship, and the risks to privacy and free expression em erging from our responses to terrorism . Paths to Re-invigorating the O pen Society and Protecting the Marketplace. When w e im agine the right to free expression, as it is enshrined in constitutional and international hum an rights declarations and treatises w e im agine situations involving sm all printing presses distributing revolutionary m aterial under an oppressive regim e. Certainly the pro-Soviet Abram s and his colleagues believed that they w ere revolutionaries w hen they printed pam phlets during the First World War. O r Talley w hen he appealed to consum ers regarding discrim inatory hiring practices. O r McIntyre w ho insisted on publishing pam phlets despite regulations by the state of O hio. We do not im agine people trying to dow nload pornography, share copyrighted m usic illegally as cham pions in an oppressed w orld. Yet the fight for both types of people, those w ho are struggling against oppression and for justice, and those w ho w ish to im part and access inform ation are one and the sam e. O nce w e start building m echanism s to control one, the others w ill also be affected. It is hard to believe, but is true nonetheless, that w e need unfettered speech and privacy rights to ensure the m arketplace of ideas, that w ill sustain the open society. Unless people can speak freely, and not be encum bered by surveillance, particularly from recent policies and practices created to com bat terror, then w e w ill not have the dream that w e once had, of a place w here w e can all com e together and com m unicate, separate from flesh and steel. If w e are still seeking such a w orld, and I think w e are, then w e need to fix m any things. We need to understand that a zone of autonom y exists around all individuals, supported, enhanced, and protected by privacy. This w ill be supported 96

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through law s upholding long-respected rights to be secure from interference. We also need to halt this alarm ing progression of policies and practices introduced w ith the intent of com bating terrorism , that in the end have the effect of reducing our rights collectively. We do indeed live in perilous tim es, just as w e did w hen Abram s w as of issue at the end of the Great War. I acknow ledge that O liver Wendell Holm es, w hom I celebrate in this paper, actually w as quite unforgiving in tw o previous cases involving sim ilar w artim e activity, and w rote opinions con dem n in g th e accused. But I rem ain optim istic. Just as Holm es turned the bend and acknow ledged that w ar does not m ean the suspension of rights, and just as the US jurisprudence follow ed in the 1960s, and reaffirm ed in the Georgia decision, rights m ay prevail. If rights prevail, then the m arketplace of ideas m ay be secured. I im agine it w ill be a struggle, but this is not a bad thing in itself. As Holm es noted, w hen speech is threatened it only reaffirm s its im portance. Speech is only valuable w hen governm ents try to lim it it. And as he says, the “ultim ate good desired is better reached by free trade in ideas.” We dream ed that the Internet w ould sustain this m arketplace, w h ich in turn w ould sustain th e open society. We w ere w rong, but our goals rem ain intact. O ur reasons are thus noble, as w e recognize that any incursion upon free expression, even the smallest, interferes w ith the m arketplace of ideas. This m arketplace is too im portant to sustaining an open society to have it dam aged. It offends m e to see lim its placed upon this m arketplace, as it offends others too. And these “others” w ill be visionaries, com ing up w ith legal, political, and technological innovations that m ay yet deliver on that dream , and bring us in from the cold. This article is from The Media Freedom Internet Cookbook (Vienna: O SCE, 2004).

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III. Libel and D efamatio n Law s

Mikl贸s Haraszti and Ilia Dohel Libel and Insult Law s: Where We Stand and What We Wo uld Like to Achieve Toby Mendel The Case against Criminal D efamatio n Law s Ronald Koven Ho w D angero us Archaic Insult Law s Can Be


Miklós Haraszti and Ilia Dohel Libel and Insult Law s: Where We Stand and What We Wo uld Like to Achieve

I am pleased to announce that m ost of the O SCE participating States have realized that their crim inal libel and insult law s m ust be changed. At stake is liberation of journalists from fear of prosecution for criticism , or for sim ply bein g in accurate in th eir reporting. That fear is m ore than w ell founded in m any participating States. It is crippling journalism either by self-censorship w hen dealing w ith sensitive subjects, or by harsh punishm ents for a lack of self-censorship. The fear of being prosecuted for defam ation has been lurking over the press even in countries w here freedom of expression has been flourishing for decades. You w ill find an exam ple of this later in this chapter. The evolving tw enty-first century standard does not tolerate crim inal sanctions for libel and insult, especially those in volvin g im prison m en t. Th is stan dard m ust an d w ill be established in the legislation of m any m ore O SCE participating States in the near future. Let m e share w ith you a few rem arkable trends in the O SCE area. In 1997, w hen the post of the O SCE Representative on Freedom of the Media w as established, there w as only one country in the O SCE area w hich did not envisage crim inal liability for defam ation at the federal level: the United States of Am erica, w here 17 states still retain those law s despite a federal ban on their application. Since then – w ithin only five years – five m ore States have taken crim inal libel off their books. They are Bosnia and Herzegovina, Cyprus, Georgia, Moldova and Ukraine. M IKLÓ S H ARASZTI AND ILIA D O HEL

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To date, 70 per cent of the O SCE participating States have realized that the application of their obsolete defam ation law s is against free speech. During the past ten years they have been , to differen t exten ts, in volved in liberalizin g th eir defam ation legislation. How ever, understandably, initiating an abolition of these law s is a lengthy process. And liberalization is continuing, w ith current plans to amend criminal provisions in at least 14 O SCE participating States. O nly nine out of the 55 countries of the O SCE region admitted having applied actual incarceration for defamation. This show s that court practices in most of the countries of the O SCE area follow the case law of the European Court of Human Rights. The Court has alw ays ruled against imprisonment as a disproportionate punishment for libel and insult. For those countries w ho w ish to decrim inalize libel and insult, m y O ffice is alw ays there to assist: through dialogue w ith state officials, MPs, partner international organizations and journalists; intervening in individual crim inal defam ation cases; and review ing current and draft legislation. We have also prepared som e useful tools to assist reform . Actually, m y optim ism is boosted by the results of a com prehensive database on defam ation provisions and court practices in the O SCE area, w hich w as produced by m y O ffice. This pioneering database â&#x20AC;&#x201C; the Matrix â&#x20AC;&#x201C; has been accessible on our w ebsite since March 2005, at <w w w.osce.org/fom >. The Matrix is a good tool for research and for highlighting best practices for reform and advocacy policy. This chapter of our Yearbook also includes speeches by our colleagues Ronald Koven, the European Representative of the World Press Freedom Com m ittee, and Toby Mendel, the Law Program m e Director of ARTICLE 19, both renow ned experts in defam ation law s, w ho presented their thoughts at the round table W hat Can Be Done to Decriminalize Libel and Repeal Insult Laws in Paris in 2003. 102

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Professor Andras Sajo from the Central European University helped shape the survey and the Matrix, and that w ork w as m anaged by Ilia Dohel, m y O ffice’s Research Assistant. I am thankful to both of them . Finally, I w ish to thank the governm ents of those O SCE participating States, the O SCE field operations and Reporters sans frontières w ho have assisted m y O ffice in com piling the Matrix. It takes m uch tim e and effort to change one’s m ind, but even m ore to change the law in the books. How ever, w e can w ork on this together and I believe that w e w ill succeed.

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Toby Mendel The Case against Criminal D efamatio n Law s Criminal defamation law s present a particularly thorny problem for freedom of expression cam paigners. O n the one hand, they clearly represent an unacceptable restriction on freedom of expression and cause serious chilling effects in m any countries w here such law s are not only oppressive in and of them selves, but also roundly abused. O n the other hand, these law s rem ain in place in almost every O SCE Member State, and in some cases they have even survived constitutional challenges. Furthermore, even international human rights bodies have failed to take sufficiently decisive action against these law s. I should start w ith a term inological note. I prefer to use the generic English term defamation rather than the legal term s libel or insult. In English law, defamation refers to the undermining of someoneâ&#x20AC;&#x2122;s reputation, and that is w hat these law s are all about. It therefore seem s to m e that defam ation is a m ore appropriate, and m ore general, term than libel, w hich refers to a defam atory statem ent in permanent form (as opposed to an oral defamation), or insult, w hich is not generally found in com m on law countries, but w hich, in m any European countries, refers to a statem ent of opinion (as opposed to a factual allegation). Let m e first outline from a legal perspective som e of the problem s w ith crim inal defam ation law s. The m ost serious problem is the risk of a crim inal sanction being applied for the peaceful exercise of the right to freedom of expression. The risk of im prisonm ent, a definite possibility upon being convicted for crim inal defam ation in m ost jurisdictions, obviously poses a serious chilling effect on freedom of expression, even if this extrem e sanction is rarely im posed. Suspended sentences, w hich com e into effect if the crim e is repeated, are particularly insidious as they serve as an ongoing threat, lim iting T O BY M ENDEL

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the freedom of expression of those over w hom they hang. Nevertheless, this form of sanction attracts far less international condem nation than actual prison sentences. A range of other crim inal-type sanctions has also been applied for breaches of crim inal defam ation rules, including suspension of the right to practice journalism , being barred from participating in a particular form of m edia, such as the broadcast m edia, and excessive fines. In addition, in m ost countries, sim ply having a crim inal record can serve as an unw anted and som etim es quite unpleasant form of sanction. A second legal problem w ith m any crim inal defam ation law s is that, despite their crim inal nature, they do not require m ental guilt for conviction. A fundam ental principle of crim inal law, w hich has very few exceptions, all of w hich are problem atical, is that no one m ay be found guilty sim ply for a w rongful act in the absence of m ental guilt, know n as mens rea. In the context of crim inal defam ation, this should norm ally im ply an intention to cause harm to the reputation of the party claim ing to be defam ed. In relation to a statem ent of fact, this additionally requires either proof of knowledge of falsity, or, at least, reckless disregard of w hether or not the statem ent w as false. Few crim inal defam ation law s respect these fundam ental legal standards. A third, closely-related problem , is that few crim inal defam ation law s place the burden of proving all the elem ents of the offence on the party w ho claim s to have been defam ed. This placem ent of onus flow s from the fundam ental tenet that the accused shall be presum ed innocent until proven guilty, and it is highly anom alous that this principle is frequently disregarded or not respected in the crim inal defam ation context. In relation to defam ation, this onus should require the party w ho brings the case to prove that the statem ent m ade w as false and that the accused had the requisite m ental elem ent of mens rea, as discussed above. 106

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A fourth problem w ith m any crim inal defam ation law s is that they provide special protection for public officials. Such protection m ay take a variety of form s, including the involvem ent of public prosecutors in court cases, h igh er pen alties for defam ing certain officials, or different standards as to w hat constitutes defam ation in relation to these officials. All of these special provisions obviously run counter to the principle that officials should tolerate m ore, not less, criticism , a principle that has repeatedly been endorsed by international courts and other standard-setting bodies. It m ay be noted that, w ere these problem s to be addressed and crim inal defam ation law s relatively sanitized, there w ould probably be little interest in m aking use of them . In other w ords, if the m ost obvious problem s w ith crim inal defam ation law s w ere addressed, they w ould likely fall into disuse. Let m e turn now to the apparently anom alous situation described above w hereby, despite the problem s just noted, crim inal defam ation law s have rem ained in place in alm ost all O SCE participating States. Perhaps one of the reasons for this is the ongoing influence of the historical developm ent of crim inal defam ation law s, w hich date from a tim e w hen the evils of defam ation and public disorder w ere closely related. In the UK, for exam ple, crim inal defam ation dates from the 1275 Statute of Westm inster, w hich established the offence of Scandalum M agnatum, providing that â&#x20AC;Ś from henceforth none be so hardy to tell or publish any false new s or tales, w hereby discord or occasion of discord or slander m ay grow betw een the king and his people or the great m en of the realm . The purpose of Scandalum M agnatum seem s to have been m ainly to prom ote peaceful m eans of redress in a society characterized by constant threats to public order. Holdsw orth, in A History of English Law, notes that the purpose of these statutes T O BY M ENDEL

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w as, “not so m uch to guard the reputation of the m agnates, as to safeguard the peace of the kingdom ,” adding, “this w as no vain fear at a tim e w hen the offended great one w as only too ready to resort to arm s to redress a fancied injury.” The Suprem e Court of Canada has am plified this noting that, “in a society dom inated by extrem ely pow erful landow ners, [defam atory statem ents] could threaten the security of the state.” It is obviously tim e to draw a clear line under the confusion betw een defam ation law s and law s designed to protect public order or security. The risk of even m inor disorder – such as a fight – resulting from defam atory statem ents is relatively rem ote in m odern tim es, and the risk of serious disorder is alm ost unim aginable. Equally im portant, m ost m odern States have at their disposal a range of law s m ore appropriately tailored to deal w ith public-order concerns, m aking it totally unnecessary to use defam ation law s for this purpose. I note that m any of these other law s are also problem atical from a freedom -of-expression perspective, but that is not our concern here. Finally, let m e address the question of international standards in this area. Although, as noted above, international hum an rights bodies have not done enough to com bat the evils of crim inal defam ation, there exists a grow ing body of authoritative legal standards w hich suggests that crim inal defam ation law s on their ow n, or at least the im position of crim inal sanctions, are contrary to the guarantee of freedom of expression. International guarantees of freedom of expression, like alm ost all constitutional guarantees, do allow for som e restrictions on this fundam ental right, but only w hen these m eet certain conditions, including that they are necessary in a dem ocratic society. Necessity im plies that there is a pressing social need for the restriction and that the restriction is proportionate. This latter im plies, at a m inim um , that the least intrusive m easures available for effectively addressing the 108

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problem m ust be em ployed, as opposed to any m easures w hich m ore seriously lim it the right to freedom of expression. The experience of countries around the w orld w here crim inal defam ation law s no longer exist or have fallen into disuse dem onstrates clearly that civil defam ation law s, along w ith a variety of self-regulatory and other rem edies, suffice perfectly as a m eans for addressing the problem of harm to reputation. Therefore, given that civil defam ation law s are clearly less intrusive than crim inal defam ation law s, crim inal defam ation law s cannot be justified, since they represent a restriction on freedom of expression. This view is reflected in a num ber of statem ents on this m atter by auth oritative in tern ation al bodies. Non e of th e quasi-judicial bodies responsible for hum an rights at the UN, or in the three regional system s for the protection of hum an rights in Africa, the Am ericas and Europe – w ith the exception of the European Court of Hum an Rights (m ore about this below ) – have had an opportunity to deal w ith the issue of crim inal defam ation in the context of a contentious case. The UN Hum an Rights Com m ittee, the body responsible for overseeing the im plem entation of the International Covenant on Civil and Political Rights, how ever, has repeatedly expressed its concern about crim inal defam ation in the context of its consideration of regular country reports. The Inter-Am erican Court of Hum an Rights has recently agreed to hear the case of Mauricio Herrera Ulloa, a Costa Rican journalist w ho w as convicted of crim inal defam ation by his national courts. And in O ctober 2000, the Inter-Am erican Com m ission on Hum an Rights adopted a Declaration of Principles on Freedom of Expression. Paragraph 10 of this Declaration states am ong other things: [T]he protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in w hich the person offended is a public official, a T O BY M ENDEL

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public person or a private person w ho has voluntarily becom e involved in m atters of public interest. Th e UN Special Rapporteur on Freedom of O pin ion an d Expression has stated unconditionally that im prisonm ent is not a legitim ate sanction for defam ation. Furtherm ore, in his Report in 2000, and again in 2001, the Special Rapporteur called on States to repeal all crim inal defam ation law s in favour of civil defam ation law s. Every year, the Com m ission on Hum an Rights, in its resolution on freedom of expression, notes its concern w ith “the abuse of legal provisions on crim inal libel.” The three special international m andates for prom oting freedom of expression – the UN Special Rapporteur, the O SCE Representative on Freedom of the Media and the O rganization of Am erican States Special Rapporteur on Freedom of Expression – have m et each year since 1999 under the auspices of ARTICLE 19 and each year they issue a Joint Declaration addressing various freedom -of-expression issues. In their Joint Declaration of Novem ber 1999, and again in Decem ber 2002, they called on States to repeal their crim inal defam ation law s. According to the 2002 statem ent, Crim inal defam ation is not a justifiable restriction on freedom of expression; all crim inal defam ation law s should be abolished and replaced, w here necessary, w ith appropriate civil defam ation law s. These standards are encapsulated in the July 2000 ARTICLE 19 publication, Defining Defamation: Principles on Freedom of Expression and Protection of Reputation, a set of principles on how to balance the right to freedom of expression and the n eed to protect reputation s. Th ese prin ciples h ave been endorsed by the three special international m andates noted above, as w ell as by a large num ber of other organizations and individuals. Principle 4(a) states categorically: 110

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All crim inal defam ation law s should be abolished and replaced, w here necessary, w ith appropriate civil defam ation law s. Steps should be taken, in those States w hich still have crim inal defam ation law s in place, to progressively im plem ent this Principle. The European Court of Hum an Rights has never actually ruled out crim inal defam ation, and, in fact, in a sm all num ber of cases, the Court has allow ed crim inal defam ation convictions. Nonetheless, the Court has clearly recognized that there are serious problem s w ith crim in al defam ation , an d h as frequently reiterated the follow ing statem ent, including in the context of defam ation cases: [T]he dominant position w hich the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly w here other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media. Indeed, the European Court has stated that crim inal m easures should only be adopted w here States act â&#x20AC;&#x153;in their capacity as guarantors of public order.â&#x20AC;? In m y view, it is significant that in those cases w hich involved convictions for defam ation the Court referred to the application of crim inal m easures only as a m eans of m aintaining public order, and not as a m eans of protecting reputations. I have already m ade m y view s on the use of defam ation as a public order m echanism know n. In any case, the European Court of Hum an Rights has m ade it clear that disproportionate sanctions, even of a civil nature, violate Article 10 of the European Convention for the Protection of Hum an Rights and Fundam ental Freedom s. In holding that a high civil defamation aw ard represented a breach of the right to freedom of expression, the Court stated clearly: [U]nder the Convention, an aw ard of dam ages for defam ation m ust bear a reasonable relationship of proportionality to the injury to reputation suffered. T O BY M ENDEL

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Th e possibility of im prison m en t for defam ation is a very severe penalty, and the European Court of Hum an Rights has never upheld a prison sentence for defam ation. Indeed, it has specifically stated in relation to crim inal penalties for defam ation that such m easures should only be adopted w here they are “…intended to react appropriately and without excess to defam atory accusations devoid of foundation or form ulated in bad faith.” [Emphasis added.] Alth ough on occasion th e Court h as uph eld crim in al defam ation convictions, in these cases it has been at pains to point out that the sanctions w ere m odest and hence m et the requirem ent of proportionality. For exam ple, in Tammer v. Estonia, the Court specifically noted “the lim ited am ount of the fine im posed” in upholding the conviction; the fine in that case w as ten tim es the daily m inim um w age. From the decisions cited above, w e can conclude w ith som e confidence that crim inal sanctions for defam ation are contrary to international law. Furtherm ore, there is a grow ing body of increasingly authoritative legal standard-setting that argues that crim inal defam ation law s by their very nature, regardless of the particular penalty applied, represent a breach of the right to freedom of expression. There are good reasons for this. The public order rationale for crim inal defam ation law s is no longer relevant. Most crim inal defam ation law s have serious legal flaw s, and they exert an unacceptable chilling effect on freedom of expression. It is high tim e that States around the w orld repealed their crim inal defam ation law s, replacin g th em , w h ere n ecessary, w ith appropriate civil defam ation law s. This speech is from the book Ending the Chilling Effect: Working to Repeal Crim inal Libel and Insult Law s (Vienna: O SCE, 2004).

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Ronald Koven Ho w D angero us Archaic Insult Law s Can Be

My friend Toby Mendel from ARTICLE 19 has been questioning the definition of the expression insult laws. The World Press Freedom Com m ittee publication, Insult Laws: An Insult to Press Freedom defines insult law s as law s that give special protection from so-called insult, offence, outrage, contem pt or disrespect to the chief of state and other officials – high and low – public institutions or bodies, like the parliam ent, the police or the arm ed forces, the sym bols of the state, like the flag, or the coat of arm s, and the state or nation them selves... Insult law s m ake it a crim e to offend the “honour and dignity” of public officials, state offices and national institutions. That is w hat I m ean w hen I talk about insult law s. I should also m ention the fam ous statem ent that w as m ade by a judge of the US Suprem e Court discussing obscenity, w ho said, “I can’t define it, but I know w hat it is w hen I see it.” I think the sam e thing applies, to som e extent, to insult law s. Before I go any further, I w ould like to thank Freim ut Duve for all the w ork he has done in the field of crim inal defam ation and insult law s. O ver the years he w as in office, he w as alw ays at the vanguard of those fighting these law s. He never hesitated to speak out against them . We have not alw ays agreed on everything, but on that point, m ay he be greatly thanked and m ay his successor pick up his banner and fight just as hard as he has to elim inate such law s. It is not Utopian to think that such law s can be elim inated in the O SCE area or anyw here else for that m atter. A w ide variety of countries in different parts of the w orld have recognized that these law s are no longer justified and should be RO NALD KO VEN

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rem oved from the books. Nevertheless, such law s continue to exist in Western European dem ocracies, and even if they are constrained by dem ocratic traditions, they still provide States elsew here that w ish to m aintain and, in m any cases, use such law s w ith a convenient excuse to do so. Although there is a distinction betw een crim inal defam ation and insult law s, in m ost countries that distinction is greatly blurred in practice because a crim in al defam ation charge is generally brought by a public prosecutor, and a public prosecutor does not act on behalf of private individuals, but of public officials. Thus, w hile it is perfectly true that the distinction betw een these tw o types of law is m erely a grey line, they can be defined separately. Let m e give you an exam ple of how the existence of such law s can be harm ful – even in France. In 1996, the [then] Iraqi president Saddam Hussein took a very prom inent journalist, Jean Daniel of the N ouvel O bservateur, to court for having offended him . Saddam Hussein’s law yers brought the case as if Hussein w ere a private person, but the French judges said in effect, “No, Saddam Hussein has no right to sue in a French court as a private person because he is a chief of state, and as a chief of state he is protected under the provisions of the French Press Law of 1881, w hich specifically protects heads of state. He should sue under the special protection afforded to a chief of state.” Fortunately, Saddam Hussein’s law yers did not pursue that invitation, but in effect the judges w ere saying, “Although that law is no longer in general use, w e invite you to avail yourself of it.” I hope this show s you how dangerous it can be to keep such legislation on the books, even in countries w ith dem ocratic traditions w here such law s have not been used for a long tim e. I think it is no coincidence that the French presidents w ho vow ed they w ould never use the 1881 law to protect them 114

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selves failed to seek its revocation. They w anted to keep it in place like a sw ord of Dam ocles that could alw ays be used if they felt they had been truly offended. And it w as alw ays up to them to decide w hat constituted a true offence. What needs to be done now is to conduct an intensive cam paign not only in countries w here these law s exist and are applied, but also in countries w here they seem to be only an anachronistic appendix w ith no practical uses. But as w e all know, an appendix can alw ays becom e infected and kill you. These law s m ust be elim inated, not only w here they are regularly used but also w here they are not applied but serve as a convenient excuse for other states. I hope w e w ill m ake that point very strongly in our recom m endations. This speech is from the book Ending the Chilling Effect: Working to Repeal Crim inal Libel and Insult Law s (Vienna: O SCE, 2004).

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IV. View s and Co mmentaries Dardan Gashi The Media Situatio n in Ko so vo Media Vo ices Speak O ut abo ut Libel and Freedo m o f Info rmatio n in Central Asia Extracts fro m the First So uth Caucasus Media Co nference Miklós Haraszti “Berlin Speech” at the Co nference o n Anti-Semitism


Dardan Gashi The Media Situatio n in Ko so vo

Wh en th e Prim e M in ister of Kosovo, Ram ush Haradin aj, received the indictm ent from the International Crim inal Tribunal for the Form er Yugoslavia (ICTY) on 8 March 2005, w e all feared that this could be the possible detonator for a repetition of w h at h ad h appen ed alm ost exactly a year ago. Betw een 17 and 19 March 2004, tens of thousands of m ostly young Albanians had violently confronted both the security forces and local Serbs over an alleged cruel and vicious m urder of three Albanian children by nationalist Serbs. What follow ed w as the w orst outbreak of violence in Kosovo since the w ar in 1999. This tim e, how ever, the situation rem ained calm . What w as different this time? Why could rumours about the vicious killing of children provoke thousands to ransack churches and homes but the apprehension of a popular w ar hero and a charismatic Prime Minister not spark off such events? Th ere are probably m an y an sw ers to th is. Th e m ost im portant fact is that the Prim e Minister him self called for calm and asked everyone to refrain from violent acts. But let us just for a m om ent im agine a m edia that had reacted hysterically, w hich had called the indictm ent an anti-Albanian act by the ICTY, played patriotic m usic, m ovies and docum entaries all day long and aired interview s w ith â&#x20AC;&#x153;expertsâ&#x20AC;? w ho condem ned the indictm ent and called on people to show their disapproval. It is hard to im agine that the situation w ould have continued to be calm after such program m ing. How ever, this tim e the Kosovar m edia did refrain from unprofessional, em otional and biased reporting. They covered this im portant and difficult event w ith the necessary objectivity and aired no program m es that w ould have exacerbated D ARDAN G ASHI

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ten sion s an d fuelled an atm osph ere of h ysteria. In oth er w ords, this tim e the m edia acted in a com pletely different w ay to the broadcast m edia a year ago. The m edia w ere so restrained that they w ere even accused of being sterile and of underplaying the event! Have the m edia m atured as a result of the events in March 2004? It w ould seem so. The events them selves, but especially the reactions of the O SCE Representative on Freedom of the Media (RFO M ) and the Tem porary Media Com m issioner (TMC) in Kosovo, prom pted a discussion w ithin the Kosovar m edia scene. The results w ere a series of round tables and other events w here it w as concluded that the m edia had behaved unprofessionally at the very least, if not recklessly. Later on, the leading television broadcasters RTK, KTV and TV 21 publicly adm itted to different degrees of unprofessional conduct during the events. In this w ay they confirm ed the findings of both the RFO M and of the TMC w ho in separate reports had accused the leading broadcast m edia, and in particular the public broadcaster RTK, of having contributed m assively to the escalation of violence in March 2004. As a result of the Report on the Role of the M edia during the M arch Events in Kosovo a Special Representative for Kosovo w as appointed by the O SCE Representative on Freedom of the Media. The m ain task of the Special Representative w as to assist w ith im plem enting the recom m endations m ade in the report on the m edia in Kosovo. After seven m onths of w ork in Kosovo and in close cooperation w ith the TMC and the O SCE Mission in Kosovo, all but one 1 of the recom m endations have either been im plem ented or are in the final stages of being im plem ented. 1

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The only recom m endation that w as neither im plem ented nor acted upon is the one calling for a separate public broadcaster for m inorities in Kosovo. Both the international community and the Government in Kosovo refused to entertain the idea w ith the argum ent that this w ould lead to further segregation of society.

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The m ost im portant achievem ents of the joint efforts undertaken by RFO M, TMC and the O SCE Mission in Kosovo are those dealing w ith reform s w ithin the public broadcaster RTK and the drafting of m edia-related law s and other regulations. • After m onths of negotiations and discussions RTK did agree (in addition to publicly acknow ledging poor conduct) to pay a substantial fine. It also agreed to accept external advice and training, adopted an internal code of ethics and consented to changes in the m anagem ent and the governing board. Since then, no further reporting of sim ilar m isconduct by RTK have been registered, although it cannot be claim ed that the overall quality has im proved. • The Law on the Establishing of the Independent Media Commission w as redrafted and finally passed by the assembly. • Th e Law on th e Establish in g of th e Public Broadcaster (RTK) w as drafted. The drafting of this Law w ill finally give the broadcaster a clear m andate and protection from outside influence. • A code of ethics for print m edia w as drafted and signed by all relevant print m edia in Kosovo. • The O SCE Mission in Kosovo restructured the m edia section w ithin the Dem ocratization Departm ent in order to m eet the new challenges and changes in the m edia landscape m ore effectively. • A strategic plan for m in ority broadcastin g, w h ich is designed to ensure the sustainability of m inority broadcasters through governm ental aid, w as adopted by the Governm ent in Pristina. These achievem ents have not, how ever, been im posed on Kosovar m edia by the international com m unity. At every step m edia association s an d th e m edia th em selves w ere involved and consulted. It w as in fact Kosovar journalists and D ARDAN G ASHI

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the associations w ho transform ed the discussion about the March events into a fruitful debate that led to an acknow ledgem ent of m istakes. During the drafting of the law s all relevant parties w ere invited and their argum ents w ere taken into account. In fact, the drafting of the law s w as a prerogative of the Governm ent. The TMC, RFO M and O SCE Mission in Kosovo only helped and advised. The sam e situation occurred w ith the code of ethics. It w as drafted by Kosovar journalists from different ethnic backgrounds and the international representatives only facilitated the process. Much m ore rem ains to be done in Kosovo. While the legal foundations for a functioning m edia landscape seem to be in place, the quality of som e of the m edia is still poor. O n the other hand, m edia w hich are courageous and professional are increasingly confronted w ith intim idation and threats. A case in point is the new ly established new spaper Express. In its few m onths of existence it has displayed a high degree of investigative and professional journalism uncovering scandals and publishing stories that w ere avoided in the past. Yet the upshot of this is that the paper reports threats on a daily basis and its journalists have been intim idated and attacked. Nevertheless, as a result of these im portant m ilestones the Kosovar m edia landscape now bears a closer resem blance to the m edia scenes in the rest of Europe. The law s and the code of ethics are for the m ost part com patible w ith best practices in Europe. The quality of the m edia is constantly im proving â&#x20AC;&#x201C; even though som e partisan papers continue to display a w orrisom e degree of intolerance, m ainly against political opponents. O ne year after the tragic events of March 2004, the m edia landscape in Kosovo looks different. Through the joint efforts of international organizations, local institutions and journalists, w e have m anaged to establish the basis for a m ore profession al an d respon sible m edia. Th ese ach ievem en ts could, how ever, be jeopardized if donors, m edia organizations and 122

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oth er relevan t in stitution s w ith draw th eir h elp. Kosovar m edia now need a final push. They have show n that they can handle criticism and rem edy deficiencies. They have been cooperative and have dem onstrated that they can indeed tackle difficult situations in a professional m anner. It w ould be a great loss if they w ere now left in the lurch w hen things are finally m oving in the right direction.

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Media Vo ices Speak O ut abo ut Libel and Freedo m o f Info rmatio n in Central Asia * “Any journalist today faces the choice to either w ork according to the rules of the Governm ent or to try and be fair. In the first case, he or she m ust accept restrictions pertinent to som e taboo topics and to criticism of the akim (on the regional level) and the President (on the national level). Within the fram ew ork of these restrictions one can say that there is freedom of speech. Many journalists have accepted these restrictions and, taking them as the norm , believe that they are independent. Many of m y colleagues told m e: Why do you care about the President and his fam ily? Forget about them , set your sights on a low er level and you w on’t have problem s. But w hat kind of journalism is it w hen the President – the core of the existing political system , the m an w ho has accum ulated all the plenitude of pow er – is excluded from the range of issues discussed in the m edia? This restriction deprives journalism of its m ain features – depth and objectivity. In the second case, w hen a journalist does not accept these restrictions, he or she starts w alking in a m inefield. At the very least these journalists jeopardize their job chances. The m axim um punishm ent for this m ay be a jail term . Betw een these extrem es a journalist faces a w hole bunch of troubles and problem s. No m edia w ill print his or her articles except opposition m edia. Writin g for th e opposition m edia is a serious risk: a journalist m ay face law suits from insulted officials, get into trouble w ith the police and, finally, could sim ply end up being the victim of a physical attack. The journalist’s fam ily m ay also face the influence of the notorious ‘adm inistrative resource’. *

The follow ing quotations are from the presentations at the Sixth Central Asian Media Conference Twenty-First Century Challenges for the M edia in Central Asia: Dealing with Libel and Freedom of Information held in Dushanbe in Septem ber 2004.

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The Internet is the only ‘air vent’ for such journalists. There, an opportunity exists to publish any critical and unw anted articles. Now adays opposition and independent Internet new spapers outplay pro-governm ent sites. Popular new s sites N avigator, KUB and Eurasia have becom e the m ain independent new s sources for Internet users in Kazakhstan. How ever, considering that only three per cent of the population have regular Internet access, the im pact of these sites is extrem ely lim ited.” “…I know the reasons used by supporters of the regim e to justify the m edia freedom suppression in the country. They claim th at excessive freedom an d un con trolled criticism of th e authorities m ay destabilize the situation and plunge the country into anarchy. Therefore, it is suggested that in the political regim e of Nazarbayev, h ush in g up free m edia an d restrictin g free speech, preserves the stability of Kazakhstani society. This is the price of such stability. We have to answ er the question of w hat is m ore im portant for Kazakhstani society: the stability acquired in such a w ay or a dem ocracy w ith the risk of destabilization. Essentially, this is the m ain issue w hen defining the prospects of the developm ent of our country. The real political orientation of different politicians, parties and the country’s policy as such depends on the answ er w hich is given to this question. O bviously, the priority of stability over dem ocracy is the basis of Nazarbayev’s policy. How ever, this has nothing to do w ith the dem ocratic principles w hich envisage m aintaining stability by observing hum an rights and freedom s, w ithout dull obedience and fear, w ithout suppressing civil initiative. The price of stability set by the President is illegitim ate; it is too high and, m ost im portantly, it contains a denial of and a threat to stability. Stability w ithout dem ocracy is stability based on constraint and fear. If w e continue in this direction w e eventually 126

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m ight end up agreeing that the suprem e m anifestation of stability is concentration cam ps.” Sergey Duvanov, independent journalist, Kazakhstan “…People’s m isunderstanding of the term ‘inform ation security’ leads to its overindulgence w hich is not a big surprise in authoritarian States. Censorship is a tool w hich is quietly introduced to allegedly protect state secrets, but in reality it serves as a filter of unw anted inform ation. Everything that does not do for the authorities or discredits the authorities in the eyes of citizens m ay qualify as ‘unw anted’. This is w hy stories about corruption, shadow econom y, poverty and outrages of officials could rarely be seen in the Uzbek press. This show s that the authorities are not capable of fighting these negative phenom ena or are not w illing to do so. It is better not to speak about them because then people w ill not know – this is the position of censorship. The problem of inform ation security is often confused w ith hostile pow ers countering the form ation of the national ideology that the authorities support, although the Constitution of the Republic of Uzbekistan stipulates that no ideology can be established as a state ideology. Meanw hile, supporters of the national ideology propose countering the influence of external inform ation w ith controlled m edia. The tasks of these m edia include shaping the public conscience and opinion to be in favour of the State. ‘Globalization leads to the erosion of our m oral values. The people respect pow er less and less and seek another authority,’ they say. ‘Therefore, w e should erect technical and other barriers to such a barrage of inform ation.’ …Speaking about inform ation security, one m ust em phasize the follow ing detail: this security can only exist in a society w hich is not open in term s of access to inform ation. Based on this, the authorities can declare dangerous everything that is a natural hum an right – the right to freedom of speech, LIBEL AND FREEDO M

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thought, opinion, w ay of thinking, and freedom of belief. This w as probably the reason w hy the Foreign Minister of Uzbekistan w arned journalists against possible ‘m istakes’ in their coverage of the national foreign policy in Novem ber 2002. This is a kind of censorship too. Its ‘noble’ purpose is not to ‘harm ’ the country’s im age and not to increase tension w ith the ‘brother’ nations, w ith w hich the authorities have cultivated ‘friendship’ for m any years. This m eans that w e should not reveal m istakes of the Governm ent, because our Governm ent is the m ost incorruptible, faultless and w ise.” Alisher Taksanov, Asia M onitor Centre, Uzbekistan “…O bviously, there are objective factors obstructing the developm ent of the m edia. These are a lack of finances and staff, electricity pow er cuts, an underdeveloped infrastructure (printing facilities, etc.), the m odest size of the advertising m arket, the low buying capacity of the people and the w eakness of the civil society. How ever, the m ain reason is the unw illingness of the authorities to have strong and independent m edia as their opponents w ho could m onitor the w ork of the Governm ent to som e extent. To acknow ledge that w e still have nothing to be proud of is not enough. It is m ore im portant, I think, to answ er the question: w hat should w e do? Put our pens aw ay and leave the country? There have already been such suggestions. But in m y opinion this is not a w ay out. My conclusion is probably trivial. O ur journalistic com m unity needs to w ork hard to im prove its status in Tajikistan. They w on’t let you print your paper? Then you have to establish your ow n printing house. The state post service w orks badly? You need your ow n system of distribution. In order to achieve this m edia need to co-operate and w e require the active input of resources from international organizations. As a m an from the street, I understand w hy our colleagues prefer not to deal w ith courts. How ever, one cannot live w ithout 128

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them . We need positive court precedents as m uch as w e need air. We m ust punish officials for denials of access to inform ation, for denials of access to the printing press, for denials of a licence. We can and m ust initiate a real and not sim ply a form al judicial reform . We often like to draw on the exam ples of other countries and say that, for instance, the Russian Governm ent does not like the m edia and the US Governm ent does… But I believe they are all the sam e. No governm ent w ill ever ‘love’ the m edia. That w ould be unnatural. Actually, w e m ust com pare not our governm ents but the activities of those w ho restrain their outrage. The US Governm ent w ould have been happy to behave the w ay our authorities behave but it cannot afford to: the w hole system of civil society institutes does not allow this. We – the journalists – can and m ust change the Governm ent’s attitude to us and the m edia. We m ust be seen not as sensation hunters but as servants of the civil society. While officials are elected once in several years, m edia are chosen m uch m ore often: every w eek and even every day. And citizens vote for the m edia not by filling in ballots but by paying their hard-w on m oney.” M arat M amadshoyev, journalist, Tajikistan “Since the end of 2001 state organs in Kyrgyzstan practically stopped allocating frequencies to independent broadcasters, even though there are no legal grounds for this.” “…After a long and tedious slog the Regulation on Allocating Radio Frequencies w as elaborated and sent to the Governm ent for approval. Nothing w as reported about the regulation for a w hile, and in the sum m er w e learned that the ruling of the State Com m ission on Radio Frequencies w as issued on 9 July 2004… stipulating that broadcasting frequencies are to be issued on an auction basis. Still, m any things are unclear. The LIBEL AND FREEDO M

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previous regulation w as being w orked out for three years and eventually w as not adopted. How exactly w ill frequencies be allocated? What’s the deal? In Kazakhstan, stations paid several tens of thousands of dollars for a frequency. Will Kyrgyz broadcasters be able to afford a rate of 10,000 dollars? Also, there is no guarantee that having w orked for several years a station w ill not lose the frequency because there is no law regulating allocation of a frequency on an auction basis.” “…I have been appealing to new spapers, Parliam ent and the Governm ent regarding this issue. The NGO Journalists w rote a letter to the President of the Kyrgyz Republic about the difficulties of obtaining radio frequencies. At the m om ent, about 40 new stations cannot get frequencies and nobody is providing them w ith a clear answ er about w hen they can start broadcasting. In 2003, the M ass M edia association joined the cam paign to protect the rights of the electronic m edia. It has been com m unicating w ith state organs and international organizations and trying to unite all broadcasters in a single ‘fist’. Now adays, som e state organs in our country w ould like to introduce censorship, although this is prohibited by the Constitution. All actions against allocating frequencies to broadcasters testify to this. O ur task is not to let freedom of speech be restricted and not to allow everything w e have achieved since obtaining independence to be sm ashed to pieces.” Rustam Koshmuratov, Director of Almaz Radio, Kyrgyzstan “…The m ost painful issue of all is the problem of finances. The lack of any long-term developm ent strategy for a certain m edium , th e absen ce of an advertisin g policy, an d w eak hum an resources m anagem ent seriously affect the general trends of m edia developm ent in Kyrgyzstan. For the last ten years, a new pattern of regional printed and electronic m edia in the Kyrgyz Republic has evolved. These m edia only live off grants received from international organizations. They suc130

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cessfully sell the sam e project to different sponsors… The dom inant opinion is that should these grants run out, these m edia w ill sim ply disappear as they cannot be financially successful in the present conditions.” “…Enduring professional developm ent of journalists is one of the prerequisites for the developm ent of an independent press. The future of the regional m edia in Kyrgyzstan lies in establishing an alternative system of distributing print products, launching new private printing houses, developing the econom y in the regions, thus prom oting an advertising m arket and increasing people’s prosperity w hich w ould surely affect the buying capacity of consum ers of inform ation.” Almaz Kalet, independent journalist, Kyrgyzstan “The legal regim es and practices in the Central Asian States are significantly behind the rest of the O SCE participating States in providing for m edia and citizen access to inform ation held by governm ent bodies. None have adopted adequate law s providing for a strong right of access to inform ation and w hat law s the countries have adopted are underm ined by broad acts on state secrets that classify inform ation in often seem ingly arbitrary w ays and uncooperative practices by officials.” “All of the Central Asian countries have law s on regulating the m ass m edia and on the activities of journalists. All of the law s provide for som e additional rights of access by the m edia on their face and lim it censorship. How ever, in practice, the m edia law s in the Central Asian region are m ore focused on controlling the m edia than about providing access.” David Banisar, Privacy International “All Central Asian States have a provision in their constitution to the effect that international treaty norm s that are directly enforceable, such as hum an rights provisions, have the force LIBEL AND FREEDO M

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of law and, in the cases of Turkm enistan and Kazakhstan, have priority over national law s that contradict them . Additionally, in certain cases, m edia-specific law s provide explicitly for the prim acy of international law. This is the case in relation to Kazakhstan’s m ass m edia law, for exam ple. In theory, this m eans that individuals in these countries can invoke international law on freedom of expression before national courts w hen challenging unduly restrictive norm s on defam ation. To our know ledge, no such claim has been successfully brought in any of the Central Asian republics to date – but this is not to say that it is an avenue that ought not to be explored. The Central Asian States have guaranteed to their citizens that they w ill im plem ent international hum an rights law in their national jurisdictions, and they ought to be challenged on their failure to do so.” Peter N oorlander, ARTICLE 19

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Extracts fro m the First So uth Caucasus Media Co nference *

“The saying ‘w hoever controls television is in pow er’ is totally true of Arm enia. The m ajority of private national and Yerevan-based television channels, at least those w ielding som e political influence, are ow ned by big businessm en w ho in som e w ay or other are linked w ith the authorities. Add to this the Public Television and Radio Com pany, Arm enia’s m ost pow erful m edia body in term s of coverage, w hich is controlled by a board w hose m em bers are appointed by the President him self.” “The analysis of the situation show s that the state-oligarchic m onopoly on the m edia is the m ain threat to freedom of speech in Arm enia, a m onopoly based not so m uch on force as on the pseudo-m arket and pseudo-legal m echanism s w hich I attem pted to describe. And it is on creating som e alternatives to this m onopoly that an independent m edia advancem ent strategy should be built.” Boris N avasardyan, President, Yerevan Press Club, Armenia “In 2003, there w ere 133 registered cases of physical violence used against journalists and other m edia people, in contrast to 13 cases in 2004 (even though the list is incom plete). The difference is m ore than tenfold. Proceeding from the above figures and com paring the 2003 and 2004 situations, one can expect the num ber of violations of m edia and journalist rights to decline further. O n the face of it, the trend is rather positive. How ever, this is true on the face of it only, because, in fact, *

The follow ing quotations are from the presentations at the First South Caucasus Media Conference Twenty-First Century Challenges for the M edia in South Caucasus: Dealing with Libel and Freedom of Information held in Tbilisi in O ctober 2004.

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the situation is not all that good: both the figures and the trend indicate that the authorities have resolved the problem s of their relationship w ith the m edia. There are no independent TV com panies, m ost new spapers are pro-governm ent or have becom e pro-governm ent for a variety of reasons. There are only a few independent and opposition new spapers left that are fighting for their ow n survival under an extrem ely heavy burden of skilfully created and seem ingly objective pressures. The current situation poses the greatest threat to freedom of speech in the country.” Chinqiz Sultansoy, Director, Baku Press Club, Azerbaijan “The independent m edia played a crucial role in the Novem ber 2003 Rose Revolution laying the groundw ork for independent journalism in Georgia. How ever, they failed to m eet challenges they have been facing in the period follow ing the revolution. Many of the w eaknesses, w hich have characterized Georgian m edia for the last 10 to 15 years, have becom e painful in the new situation. According to various international assessm ents, Georgia is still considered am ong countries w ith partially free press. This is quite alarm ing w ith the country’s dem ocratic developm ent m oving forw ards, and such progress not taking place in m edia. Moreover, it’s not only that the Georgian m edia is lagging behind society, but w e are also dealing w ith a certain retreat.” “If the Georgian m edia restores its connection w ith society, and focuses m ore on public interest, it w ill be able to respond to the new challenges properly. Unfortunately, today’s realities do not allow such optim ism . Probably it is very hard for som e journalists to step out of the golden cages created by som e m edia ow ners.” Levan Ramishvili, Director of Programmes, Liberty Institute, Georgia 134

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“It is a great honour for m y country to host the conference, for it attests to Georgia’s strong com m itm ent to dem ocratic principles, am ong w hich freedom of the m edia is one of the m ost im portant.” Giorgi Gomiashvili, Deputy M inister of Foreign Affairs of Georgia “In the context of defam ation cases, the European Court of Hum an Rights has em phasized that the duty of the press goes beyond m ere reporting of facts; its duty is to interpret facts and events in order to inform the public and contribute to the discussion of m atters of public im portance.” “Criticism of governm ent is vital to the success of a dem ocracy and defam ation suits inhibit free debate about vital m atters of public concern. In consequence, public bodies as such should not be allow ed to sue in defam ation and governm ents should tolerate a virtually lim itless am ount of criticism . The European Court of Human Rights has said that, ‘[t]he limits of permissible criticism are w ider w ith regard to the Governm ent than in relation to a private citizen, or even a politician.’” “The European Court of Hum an Rights has also held that public officials, w hile they can sue if they are defam ed in their private capacity, should tolerate significantly m ore criticism than ordinary individuals. This is based on tw o key factors. First, it is of the greatest im portance that public officials, like public bodies, are subjected to open debate and criticism . Second, public officials have know ingly opened them selves up to criticism by their choice of profession.” “As noted above, im prisonm ent can never be regarded as an appropriate response to defam ation. The European Court of Hum an Rights has never upheld a sentence of actual im prisonm ent and international bodies have frequently em phasized the illegitim acy of defam ation law s providing for im prisonm ent as a sanction.” Peter N oorlander, Legal Adviser, ARTICLE 19 FIRST SO UTH C AUCASUS M EDIA C O NFERENCE

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“Follow ing the collapse of the Soviet Union and the start of reform s, Arm en ia, perh aps like all th e oth er ex-USSR republics, savoured the taste of freedom of speech. People avidly read new spaper publications focusing on the ups and dow ns in our recent history. Freedom of speech and freedom of inform ation are certainly som e of the basic gains of m odern society. All of us w ould find it extrem ely hard, even im possible, to give up the freedom of thought and freedom of speech that w e have grow n so accustom ed to. And yet, it is safe to say that w e often are tired of the licence w ith w hich freedom of speech is in terpreted by certain dish on est journ alists. Increasingly often one can hear the press being run dow n as ‘yellow ’. The num ber of grievances against the press has been grow ing lately. Regrettably, journalists them selves are often to blam e for m any of these grievances, their legal com petence and professional ethics leaving m uch to be desired. At the sam e tim e, the num ber of unfounded com plaints is considerable as w ell, and the m ajority of these are law suits for the protection of honour, dignity, and business reputation. It is this category that is of particular interest, being a classic exam ple of ‘inversion of responsibility’.” “After all, it is axiom atic that governm ent pressure m ounts w here there is no professional self-regulation, as is evident from the practice of other States, w here the institutions of crim inal and civil persecution scaled dow n precisely ow ing to the existence of m edia self-regulation as expressed in professional ethics and m edia quality control.” O lga Safaryan, lawyer, Internews Armenia “Azerbaijani practice show s that m ost cases betw een m ass m edia and plaintiffs are initiated on the basis of claim s for protection of honour and dignity. O n the w hole, Azerbaijani courts strictly abide by legal provisions during the consideration of such cases, w hich leads to num erous rulings issued against the m edia, m ainly due to the content of the law s.” 136

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“It should be m entioned, how ever, that considerations of freedom of expression (freedom of speech, thought, and inform ation) are usually disregarded during the hearings of libel cases in spite of their constitutional guarantees.” Ramil Gasanov, lawyer, N GO Association of Journalists of Azerbaijan, Yeni N esil – N ew Generation “It could be concluded that despite the fact that the new Georgian law on freedom of speech and expression is very close to the European one, and in general to the Western standards of freedom of expression, w e cannot say that it w ill necessarily be im plem ented autom atically. For that reason, w e consider it extrem ely im portant that Georgian courts define relevant provision s of th at law in a proper m an n er an d elaborate its jurisprudence in accordance w ith the case law of the European Court of Hum an Rights.” Irakli Kotetishvili, Legal Expert at Liberty Institute “Freedom of inform ation is a fundam ental prerequisite for providing m em bers of the general public, including the m edia, w ith inform ation on m atters in the public interest. O n the one hand, it enables public participation in policy debates and is crucial for m aking inform ed choices, w hile on the other it exposes w ron gdoin g an d corruption , th us con tributin g to elim inating a culture of secrecy and im proving governm ental accountability and transparency.” “The right to freedom of inform ation is a m ultilayered right. It im poses an obligation on public bodies to disclose inform ation; it also im plies that public bodies publish and dissem inate w idely docum ents in the public interest, for exam ple that they publicize any decision or policy w hich affects society. O n the other hand, it grants to every m em ber of the public a corresponding right to receive inform ation. In exercising these rights and duties, the m edia is delegated a vital m ission as a channel to facilitate the free flow of inform ation.” FIRST SO UTH C AUCASUS M EDIA C O NFERENCE

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“Adoptin g of freedom of in form ation law s is particularly im portant for societies in transition that em erged after the collapse of com m unism (in the Soviet Union) or other authoritarian form s of governm ent as they have to overcom e a profound culture of secrecy and their dem ocratic institutions are still w eak, although they proclaim ed a com m itm ent to the rule of law and to fostering dem ocratic reform s.” “Governm ent transparency and accessible inform ation are am ong the m ost im portant prerequisites for fighting corruption, especially for societies in transition w here dem ocratic institutions are fragile. Therefore, the role of the public bodies in Arm en ia, Azerbaijan an d Georgia sh ould be to en sure accessibility to com plete and com prehensive inform ation on their activities.” Iryna Smolina, Europe Programme O fficer, ARTICLE 19 “The sum m arized results of several m onitoring projects conducted by the Freedom of Inform ation Centre and other partner organizations prove that access to inform ation and m echanism s for ensuring im plem entation of FO I legislation in the state and self-regulatory bodies of Arm enia are inadequate. The state bodies do not function transparently and openly; the legislative provisions are infringed.” “Journalists m ay becom e m onitors of the FO I practice as w ell as the m ost active users of the law, thus prom oting the establishm ent of a transparent regim e in the country.” “Civil society groups are ready to assist the Governm ent. The Govern m en t, w h ich already declared its com m itm en t to transparency, should be m onitored. It has to dem onstrate a strong political w ill to im plem ent the FO I legislation, and put theory into practice.” Shushan Doydoyan, Director of the Freedom of Information Centre, Armenia 138

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“Undoubtedly, the independent m edia are an im portant factor influencing the authorities’ actions. This is a legitim ate m ethod of exerting influence upon the State w ithin the fram ew ork of the Constitution, w hich accords w ith the generally accepted dem ocratic principles. Azerbaijan, how ever, is a country w here such principles exist only on paper.” “It is necessary to foster civilized relations betw een the m ass m edia and the authorities. We still m ust learn to live in condition s w h ere th ere is freedom of speech . O bviously, th e authorities’ accountability to the public as regards access to inform ation m ust be of a high standard. O therw ise, w e w ill not be able to build a free, dem ocratic society in w hich all the rights and liberties of citizens are respected.” Elmar Huseynov, editor-in-chief, Monitor, Azerbaijan “Inform ation about the structure of public bodies and about officials holding positions in them , decision-m aking processes, the election of elective officials in these agencies, as w ell as inform ation about the collection, processing and release of inform ation and financial activities of public bodies should not be classified as secret.” Dimitri Kitoshvili, Chairman of the Georgian N ational Commission on Communications

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Miklós Haraszti “Berlin Speech” at the Co nference o n Anti-Semitism 29 April 2004

Who w ould have thought that on the eve of expansion of the EU w e w ould still be discussing anti-Sem itism and how to com bat it? This could be entirely bad new s, but the good part is that w e are discussing this in Berlin, in the very city w here the anti-Sem ites of the ’30s pillaged and m urdered. Germ any, thanks to its great post-w ar w riters and its energetic young dem ocrats, did a great job in w hat now, even in Hungary, is called by its long Germ an nam e: Vergangenheitsbewältigung. Com m unism , w ith its seem ingly anti-fascist posture, only delayed a com ing to term s w ith the past, so in the new dem ocracies of Europe the bulk of that hard w ork still has to be delivered. Since the latest w ave of hatred m anifested itself, w e have had to understand that fighting anti-Sem itism w ould not succeed by fighting only the anti-Sem itism of the past. For exam ple, m y country, Hungary, does very w ell w hen it com m em orates the 60th anniversary of the Holocaust w ith a m useum opening in the presence of all m ainstream political leaders. But it m ight be equally educational to look at w hat m any of the best w riters of the country did in this anniversary year. They quit a Writers’ Union that could not decide to condem n a fellow w riter, w ho gave an anti-Jew ish speech at a rally. By the w ay, at that sam e rally, as if to translate the speaker’s som ew hat coded w ords, the participants burned the Israeli flag. The Nazis did not hide behind coded w ords; prejudice did not m asquerade as political correctness. With the establishm ent of Israel as the first dem ocratic State in the Middle East, M IKLÓ S H ARASZTI

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w ith the history of the Holocaust behind Europe, anti-Sem itism adapted to the new reality. But w hat is being called the “New Anti-Sem itism ” these days is not really new. It w as developed in the 1960s and ’70s. It happened w hen the Soviet Union ordered its satellites to w ithdraw recognition from Israel. At that tim e, the terrorist organizations fighting against the existence of Israel in the nam e of Palestine w ere called Marxist-Leninist, but they did exactly w hat their purportedly religious successors of today do: they cruelly m assacred innocent Israeli civilians. Their training cam ps and hiding places w ere all over the Warsaw Pact countries. I rem em ber vividly the cam paigns w hen, in Central and Eastern Europe’s w orkplaces and schools, “voluntary” donations had to be paid to support the terrorists. It w as then that “anti-Zionism ” w as invented. The new coded phrase to denom inate the Jew s w as “supporters of the Israeli aggressors” or sim ply, “Israeli aggressors”. The single greatest official state action against Jew s since the end of WW2 w as taken by the Polish Governm ent in 1968, w hen thousands of Jew ish persons w ere fired from their jobs and even squeezed out of the country – all in the nam e of fighting Zionism . There is nothing new in the denial of dem ocratic solidarity w ith the State of Israel; in turning an insensitive eye w hen it is m enaced by open calls of annihilation from old-style antiSem ites, and in equating its eventual political or hum anitarian failures w ith the sins of Nazism . I don’t believe that the present-day manifestations of Israelbashing in the press w ould amount to a New Anti-Semitism, but I am sure the symptoms do indicate a “New Insensitivity”. My O ffice recently issued a report about the role of the m edia in Kosovo in the m id-March inter-ethnic violence. We found that inaccurate and sensationalist television reporting about the death of three Kosovar Albanian children, w hich w as presented as a brutal, deliberate, ethnically m otivated 142

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killing by Serbs, probably played a crucial role in the outbreak of the violence that took 19 lives. Please com pare this case to the cartoon in a British new spaper w hich depicted Prim e Minister Sharon devouring a child. Critics saw this as a clear reference to the ancient blood libel accusation. But the supposed anti-Sem itism of the artist is less im portant then the apparently m issing sense of political responsibility in the editors of that paper, and the even m ore m issing sense of responsibility at the British Political Cartoon Society, w hich aw arded that “w ork of art” the title: “Cartoon of the Year 2003”. If such a caricature w ere to be published anyw here in the volatile post-Yugoslav region, or in the Caucasus region, the O SCE w ould be up in arm s, and rightly so. The problem w ith blood libel accusations today is not that they resem ble antiSem itic patterns, but that they can kill, alm ost literally, by supporting already violent sentim ents both in the Middle East and inside Britain. Let m e finish this by calling on the press to fight the “New Insensitivity”. All w e have to do is keep caring, relentlessly.

<http://www.osce.org/documents/cio/2004/04/2825_en.pdf>

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V. O verview – What We Have D o ne Mandate of the O SCE Representative on Freedom of the Media Repo rts and Statements to the O SCE Perm anent Council and other O SCE fora by Freim ut Duve •

Statement on Russia, Ireland and Azerbaijan at the Permanent Council of 23 O ctober 2003 (Under Current Issues)

Regular Report to the Permanent Council of 11 December 2003 by Freimut Duve

Speaking notes for Jutta Wolke, the Acting Head of O ffice of the O SCE Representative on Freedom of the M edia, for the M eeting of the O SCE Parliamentary Assembly in Vienna on 19-20 February 2004

by Miklós Haraszti •

Inaugural Statement at the M eeting of the Permanent Council of 11 M arch 2004 by M iklós Haraszti

Statement on Armenia at the Permanent Council of 1 April 2004 (Under Current Issues)

Statement on the M arch 2004 Kosovo Events at the Permanent Council of 22 April 2004 (Under Current Issues)

Report on the Role of the M edia in the M arch 2004 Events in Kosovo

N on-paper on Anti-Semitism in the M edia for the Berlin Conference on Anti-Semitism, 29 April 2004

Regular Report to the Permanent Council of 8 June 2004

Assessment Visit to Ukraine: O bservations and Recommendations

Statement on Belarus at the Permanent Council of 9 September 2004 (Under Current Issues)

Regular Report to the Permanent Council of 16 September 2004


Report on Russian M edia Coverage of the Beslan Tragedy: Access to Information and Journalists’ Working Conditions

M edia Freedom Violations in Belarus in 2004

Annual Human Dimension Implementation M eeting (HDIM ) Speaking Points, Warsaw 6 O ctober 2004

Regular Report to the Permanent Council of 16 December 2004

Assessment Visit to M oldova: O bservations and Recommendations

Jo int D eclaratio n by O SCE, UN and O AS International Mechanism s for Prom oting Freedom of Expression, 6 Decem ber 2004

Pro jects 2004 •

Guaranteeing Media Freedo m o n the Internet Expert Seminar, 30 June 2004, Vienna “The Recipes”, Recommendations of the O SCE Representative on Freedom of the M edia from the Amsterdam Internet Conference, 27-28 August 2004

Sixth Central Asian Media Co nference 23-24 September, Dushanbe Dushanbe Declaration on Libel and Freedom of Information

First So uth Caucasus Media Co nference 25-26 O ctober, Tbilisi The Tbilisi Declaration on Libel and Freedom of Information

Legal Assistance in 2004

Libel and Insult Law s: A Matrix o n Where We Stand and What We Wo uld Like to Achieve June 2004 – M arch 2005

Visits and Interventio ns in 2004


Mandate o f the O SCE Representative o n Freedo m o f the Media PC.DEC No. 193 O rganization for Security and Co-operation in Europe 5 Novem ber 1997 137th Plenary Meeting PC Journal No. 137, Agenda item 1 1. The participating States reaffirm the principles and com m itm ents they have adhered to in the field of free m edia. They recall in particular that freedom of expression is a fundam ental and internationally recognized hum an right and a basic com ponent of a dem ocratic society and that free, independent and pluralistic m edia are essential to a free and open society and accountable system s of governm ent. Bearing in m ind the principles and com m itm ents they have subscribed to w ithin the O SCE, and fully com m itted to the im plem entation of paragraph 11 of the Lisbon Sum m it Declaration, the participating States decide to establish, under the aegis of the Perm anent Council, an O SCE Representative on Freedom of the Media. The objective is to strengthen the im plem entation of relevant O SCE principles and com m itm ents as w ell as to im prove the effectiveness of concerted action by the participating States based on their com m on values. The participating States confirm that they w ill co-operate fully w ith the O SCE Representative on Freedom of the Media. He or she w ill assist the participating States, in a spirit of co-operation, in their continuing com m itm ent to the furthering of free, independent and pluralistic m edia. 2. Based on O SCE prin ciples an d com m itm en ts, th e O SCE Represen tative on Freedom of th e M edia w ill observe relevan t m edia developm en ts in all participatin g States an d w ill, on th is basis, an d in close co-ordin ation w ith th e Ch airm an -in -O ffice, advocate an d prom ote full com plian ce w ith O SCE prin ciples an d com m itm en ts regardin g freedom of expression an d free m edia. In th is respect h e or sh e w ill assum e an early-w arn in g fun ction . He or sh e w ill address serious problem s caused by, inter alia, obstruction of m edia activities an d un favourable w orkin g con dition s for journ alists. He or sh e w ill closely co-operate w ith th e participatin g States, th e Perm an en t Coun cil, th e O ffice for D em ocratic In stitution s an d Hum an Righ ts (O D IHR), th e High Com m ission er on Nation al M in orities an d, w h ere appropriate, oth er O SCE bodies, as w ell as w ith n ation al an d in tern ation al m edia association s. T HE M ANDATE

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3. The O SCE Representative on Freedom of the Media w ill concentrate, as outlined in this paragraph, on rapid response to serious noncom pliance w ith O SCE principles and com m itm ents by participating States in respect of freedom of expression and free m edia. In the case of an allegation of serious non-com pliance therew ith, the O SCE Representative on Freedom of the Media w ill seek direct contacts, in an appropriate m anner, w ith the participating State and w ith other parties concerned, assess the facts, assist the participating State, and contribute to the resolution of the issue. He or she w ill keep the Chairm an-in-O ffice inform ed about his or her activities and report to the Perm anent Council on their results, and on his or her observations and recom m endations. 4. The O SCE Representative on Freedom of the Media does not exercise a juridical function, nor can his or her involvem ent in any w ay prejudge national or international legal proceedings concerning alleged hum an rights violations. Equally, national or international proceedings concerning alleged hum an rights violations w ill not necessarily preclude the perform ance of his or her tasks as outlined in this m andate. 5. The O SCE Representative on Freedom of the Media m ay collect and receive inform ation on the situation of the m edia from all bona fide sources. He or she w ill in particular draw on inform ation and assessm ents provided by the O DIHR. The O SCE Representative on Freedom of the Media w ill support the O DIHR in assessing conditions for the functioning of free, independent and pluralistic m edia before, during and after elections. 6. The O SCE Representative on Freedom of the Media m ay at all tim es collect and receive from participating States and other interested parties (e.g. from organizations or institutions, from m edia and their representatives, and from relevant NGO s) requests, suggestions and com m ents related to strengthening and further developing com pliance w ith relevant O SCE principles and com m itm ents, including alleged serious instances of intolerance by participating States w hich utilize m edia in violation of the principles referred to in the Budapest Docum ent, Chapter VIII, paragraph 25, and in the Decisions of the Rom e Council Meeting, Chapter X. He or she m ay forw ard requests, suggestions and com m ents to the Perm anent Council, recom m ending further action w here appropriate. 7. The O SCE Representative on Freedom of the Media w ill also routinely consult w ith the Chairm an-in-O ffice and report on a regular basis to the Perm anent Council. He or she m ay be invited to the Perm anent Council to present reports, w ithin this m andate, on specific m atters related to freedom of expression and free, independent and 148

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pluralistic m edia. He or she w ill report annually to the Im plem entation Meeting on Hum an Dim ension Issues or to the O SCE Review Meeting on the status of the im plem entation of O SCE principles and com m itm ents in respect of freedom of expression and free m edia in O SCE participating States. 8. The O SCE Representative on Freedom of the Media w ill not com m unicate w ith and w ill not acknow ledge com m unications from any person or organization w hich practises or publicly condones terrorism or violence. 9. The O SCE Representative on Freedom of the Media w ill be an em inent international personality w ith long-standing relevant experience from w hom an im partial perform ance of the function w ould be expected. In the perform ance of his or her duty the O SCE Representative on Freedom of the Media w ill be guided by his or her independent and objective assessm ent regarding the specific paragraphs com posing this m andate. 10. The O SCE Representative on Freedom of the Media w ill consider serious cases arising in the context of this m andate and occurring in the participating State of w hich he or she is a national or resident if all the parties directly involved agree, including the participating State concerned. In the absence of such agreem ent, the m atter w ill be referred to the Chairm an-in-O ffice, w ho m ay appoint a Special Representative to address this particular case. 11. The O SCE Representative on Freedom of the Media w ill cooperate, on the basis of regular contacts, w ith relevant international organizations, including the United Nations and its specialized agencies and the Council of Europe, w ith a view to enhancing co-ordination and avoiding duplication. 12. The O SCE Representative on Freedom of the Media w ill be appointed in accordance w ith O SCE procedures by the Ministerial Council upon the recom m endation of the Chairm an-in-O ffice after consultation w ith the participating States. He or she w ill serve for a period of three years w hich m ay be extended under the sam e procedure for one further term of three years. 13. The O SCE Representative on Freedom of the Media w ill be established and staffed in accordance w ith this m andate and w ith O SCE Staff Regulations. The O SCE Representative on Freedom of the Media, and his or her O ffice, w ill be funded by the participating States through the O SCE budget according to O SCE financial regulations. Details w ill be w orked out by the inform al Financial Com m ittee and approved by the Perm anent Council. 14. The O ffice of the O SCE Representative on Freedom of the Media w ill be located in Vienna. T HE M ANDATE

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Interpretative statement under paragraph 79 (Chapter 6) o f the Final Reco mmendatio ns o f the Helsinki Co nsultatio ns By the delegation of France: â&#x20AC;&#x153;The follow ing Member States of the Council of Europe reaffirm their commitment to the provisions relating to freedom of expression, including the freedom of the media, in the European Convention on Human Rights, to w hich they are all contracting parties. In their view, the O SCE Representative on Freedom of the Media should also be guided by these provisions in the fulfilment of his/her mandate. O ur countries invite all other parties to the European Convention on Human Rights to subscribe to this statement.

Albania Germ any Austria Belgium Bulgaria Cyprus Denm ark Spain Estonia Finland France United Kingdom Greece Hungary Ireland Italy

Latvia Liechtenstein Lithuania Luxem bourg Malta Moldova Norw ay Netherlands Poland Portugal Rom ania Slovak Republic Slovenia Sw eden Czech Republic Turkey

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Repo rts and Statements to the Permanent Co uncil and o ther O SCE Fo ra

Statement o n Russia, Ireland and Azerbaijan at the Permanent Co uncil o f 23 O cto ber 2003 (Under Current Issues)

I w ould like to raise three issues today. First of all, m y condolences go to the fam ily and friends of Alexei Sidorov, a Russian editor fatally stabbed by tw o m en w ho am bushed him in the car park of his apartm ent building in Toliatti, Sam ara Region. His predecessor Valery Ivanov, w ho also edited the local w eekly Toliatinskoie O bosrenie, w as m urdered on 29 April 2002. His case I raised in this forum in m y regular report on 20 June 2002. I have issued a press statem ent on this m atter voicing m y indignation at another case of “censorship by killing” and urging the Russian authorities to sw iftly investigate this m urder. What concerns m e is the chilling effect such attacks against press freedom have on rank-and-file reporters w ho for survival’s sake end up opting for selfcensorship and passing on the opportunity to investigate, for exam ple, corruption or the abuse of the environm ent by big business. Being a journalist in som e regions of the Russian Federation is a hazardous profession. Unless m ore is done to ensure safe and secure conditions for all reporters, notw ithstanding the political affiliations of their publications, investigative reporting m ight just die out together w ith the w atchdog function of a free m edia. My second point concerns Ireland and the ongoing discussion in this O SCE participating State regarding press freedom . I specifically refer to the proposal to establish a statutory Press Council appointed entirely by the Governm ent to im pose a governm ent-initiated Code of Conduct on journalists and new spapers. This proposal w as m ade by a Legal Advisory Group set up by the Governm ent. The Irish Times, for exam ple, in a recent editorial w rote that it “strongly believes that statutory press regulation of the kind proposed is not in the public interest as it w ould significantly interfere REPO RTS AND STATEMENTS

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w ith editorial independence, freedom of expression and the role of the press in a dem ocracy.â&#x20AC;? I fully agree w ith this view. In a letter I w rote last w eek to the Minister for Foreign Affairs, I stressed, am ong other things, that som e of the statem ents m ade by officials during this public debate put into question certain fundam ental beliefs on how a free m edia operates in a dem ocratic society. I w ould like to repeat once again: w e live in a global village. Anything that happens in one O SCE Mem ber State m ight be closely follow ed and even replicated in another. That is w hy there is no need to set an exam ple that is questionable to say the least. My third point concerns the extrem e violence directed tow ard journalists during the post-election protests in Baku, Azerbaijan, and the reports of journalists throughout the country being prevented from covering the elections, as w ell as being subject to beatings and insult as they tried to report from the polling stations. For a w hile, one journalist w as m issing and a m ajor independent daily w as closed dow n. Yeni M usavat continues to have problem s w ith access to its office and w ith distribution. I call for a full investigation of these incidents, prosecution of those responsible for excessive use of force and for clear m easures by the Governm ent of Azerbaijan to ensure the safety of journalists in the future. O ne last point: I w ould like to m ention the latest publication of m y O ffice that w e have distributed to you today. It is called Spreading the Word on the Internet and contains contributions from participants of the conference on Freedom of the M edia and the Internet that w as held in June 2003 in Am sterdam . The Amsterdam Recommendations on Freedom of the M edia and the Internet that w ere issued at it can also be found in this publication.

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Regular Repo rt to the Permanent Co uncil o f 11 D ecember 2003 by Freimut D uve

This is m y last report to the O SCE Perm anent Council since having been elected in 1997 by the then 54 foreign m inisters as the Representative on Freedom of the Media. I served for tw o three-year term s. Six years ago there w as great hope in the w orld for those countries that cam e from a very dram atic past w here freedom for w riters and journalists w as non-existent. As a publisher I had brought to the public som e of the authors w ho w ere forbidden in their ow n countries. Back in the nineties w e all felt confident that w e w ould be able to overcom e the burden of the past in the structure of m any m edia outlets in the new ly em erging dem ocracies. At that point it seem ed that m edia freedom had taken hold in alm ost all O SCE participating States and w hat w as then needed w as to cem ent this successful start w ith vigorous m onitoring and support, m ostly of a legal nature. Thus, m y tw o-fold w ork started. We had not foreseen that in the follow ing six years the situation w ould change not for the better: m any of the new governm ents used new and old m ethods of countering criticism of their policies. As a result, the clim ate changed. The new m edia openness in som e States w as replaced by one of nervousness, self-censorship and a constant fear of oppression. This difficult situation for the m edia w as exacerbated by the m urder of thousands of citizens on 11 Septem ber 2001. As a result of a shift in priorities am ong the O SCE participating States, civil liberties, including freedom of expression, w ere pushed to the sidelines by w hat m any countries believed w ere m ore pressing needs. Many of the new priorities w ere justified but w e also saw the m isuse of the 11 Septem ber tragedy by certain governm ents for their ow n selfish reasons. An organization that prided itself on being a com m unity of declared dem ocracies, in 2003 changed its policy outlook m ore tow ards global threats to security than to its deteriorating hum an rights record. I have to declare here and now that after six years I leave the O SCE w ith a record in som e of our Mem ber States w here the new reality concerning freedom of the m edia is m ore problem atic today than w hen I took this job in 1997. Who at that tim e w ould have REPO RTS AND STATEMENTS

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thought that in developing dem ocratic Russia the Krem lin w ould again have direct or indirect control of m any of the print m edia and of m ost of the electronic m edia? Who could have predicted that the justconcluded Russian State Dum a elections w ould be so w idely criticized for failing to m eet international standards precisely because of the lack of m edia independence, balanced coverage and the absence of a broad range of inform ation for voters, thus casting a dark shadow, perhaps for years to com e, over Russia’s true dem ocratic intentions? Who at that tim e w ould have foreseen, that an elected Prim e Minister of a founding m em ber of the European Union w ould organize m edia legislation so as to help his political agenda and his fam ily’s econom ic interest? It is w ith great concern that I view last w eek’s passage in Italy of a new m edia law. As far as I understand, the law w ould allow Prim e Minister Silvio Berlusconi’s fam ily holding com pany to buy into radio and new spapers starting in 2009. Prim e Minister Berlusconi, through his political office and his business interests, already has direct and indirect influence over an estim ated 95 per cent of Italian TV. In this respect, Italy is setting a very dangerous precedent that could seriously influence the m edia structure in other O SCE States, not to m ention it also underm ines the position of this O ffice regarding m edia m onopolization. Let m e now focus on som e of the m ethods that are being used in the O SCE region by both governm ents and big business to stifle public debate and curtail independent journalism . As you know since m y first reports to this forum from 1998, w e encountered w hat I called “structural censorship”. Many of the governm ents in order to avoid open censorship introduced a series of indirect m ethods of harassm ent of m edia, w hich have a chilling effect and often force journalists and editors to revert to self-censorship. Structural censorship encom passes using the tax police, the fire departm ent, office space ow ners, distribution and printing com panies, to exert pressure on the m edia from either uncalled for and num erous harassing inspections to the denial of services under different econom ic pretexts. In the end, journalists and editors are forced to com prom ise their editorial policy so as to be able to continue to publish and broadcast. I have m entioned dozens of such cases in this forum , I w ill not repeat them, but all of you know w hat I am talking about. O ne new spaper, for exam ple, in an O SCE participating State survived over forty tax inspec154

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tions in one year and finally w as forced to com pletely change its attitude tow ards the authorities. It has not seen a tax inspector ever since. “Censorship by killing” still rem ains a threat in the O SCE region, albeit ours is one of the areas in the w orld w ith the low est num ber of killed journalists: this year tw o w ere m urdered in Russia. Nevertheless, even one case of such an ultim ate form of censorship is extrem ely disturbing. O f note is also the fact that rarely is anyone charged w ith m urdering a journalist. O ften these cases linger for years w ith no arrests ever m ade. When these threats, especially “structural censorship”, do not produce the required effect, direct legal harassm ent through the use of both crim inal and civil codes is put into gear. The w eapon of choice here is usually libel legislation. That is w hy I have taken a very strong stand concerning crim inal defam ation and insult law s that provide undue protection for public officials. In late Novem ber I held a round table in Paris on this m atter and together w ith Reporters sans frontières issued a set of recom m endations that are distributed to you today. They call, am ong other things, for the decrim inalization of defam ation in O SCE participating States. That is w hy I continue to stress that the tw o m ain pillars of a dem ocracy are free m edia and the independence of a country’s legal institutions. Libel is not the only legal m eans to target an offending journalist. When all else fails, a crim inal case m ight be fabricated that could involve any allegedly unlaw ful activity: from bribery to having sex w ith a m inor. Again, I have brought to the attention of this forum several such cases. The depth of cynicism of som e of the governm ents that belong to this organization never ceases to am aze m e. Journalists w ho had the courage to criticize these governm ents are locked up for years under trum ped up charges that on the face of it have nothing to do w ith exercising one’s right to freedom of expression. Just tw o nam es: Sergey Duvanov serving tim e in Kazakhstan and Ruslan Sharipov w ho is incarcerated in Uzbekistan. Even after I leave this job, I w ill continue fighting for their freedom . There is one country in the O SCE region w here I have basically put all the activities of m y O ffice on hold. This is Turkm enistan, a dictatorial regim e in our organization, w here the only function of the m edia is to glorify the President-for-life and destroy his opponents. Until civil liberties are reinstated I do not see any reason to w ork w ith the Governm ent. O f course, I w ill continue defending those reporters w ho run afoul of this racist dictatorship. REPO RTS AND STATEMENTS

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Now, I w ill provide you w ith a review of som e of the them es w e have w orked on for the past years. Freedom of the m edia and the Internet. This is becom ing an im portant topic, w ith governm ents and civil society debating the future developm ent of inform ation technologies and the pros and cons of this global netw ork. I held a m eeting of experts this June in Am sterdam w here w e all agreed that illegal content m ust be prosecuted in the country of its origin but all legislative and law enforcem ent activity m ust clearly target only illegal content and not the infrastructure of the Internet itself. Another them e I have been pursuing concerns m edia in m ultilingual societies. O ur latest effort is a publication issued in several languages on w hat is happening in this field in five O SCE countries: form er Yugoslav Republic of Macedonia, Luxem bourg, Moldova, Serbia and Montenegro, and Sw itzerland. The five country reports w ere presented at a conference in March in Bern, Sw itzerland. I also presented them in Belgrade in O ctober. In the global future of this new electronic century there w ill be no com pletely m onolingual country in the O SCE w orld or elsew here. Journalists w orking in conflict zones has been an ongoing them e that I focused on over the past years. There are tw o dim ensions here: the security of those reporters w ho follow events from the front lines, often filing from conflicts w here dividing lines are blurry and com batants represent diverse groups and com m unities. Another dim ension concerns the relationship that is established betw een journalists and the m ilitary, such as w as the case during the w ar in Iraq. How to balance fair and unbiased reporting w ith security w hen covering a conflict area is a them e that all of us, inside and outside the O SCE, should continue to discuss. Any m ilitary action by a dem ocracy is proceeded by a public debate and is follow ed scrupulously only if the public has access to all kinds of inform ation com ing from different sources. This established practice should not be jeopardized. We all understand that at the very m om ent a dem ocracy sends its soldiers to w ar, the pros and cons debate becom es lim ited since w e all side w ith our fellow soldiers. But any m ilitary action a dem ocracy feels it has to take needs to be debated critically. After 11 Septem ber, national security m atters started again creeping in as reasons to censor the m edia. O verly intrusive legislation is being passed in several O SCE States. Som e m edia outlets feel the full burden of being targeted for allegedly underm ining national security. When I point an accusing finger at a country to the east of Vienna that 156

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country points its ow n finger to the West: if they can get aw ay w ith it w hy canâ&#x20AC;&#x2122;t w e? I believe that in the developed dem ocracies the glitches in the system that w e com e across in the end w ill be fixed through the efforts of civil society assisted by an independent judiciary and a vigilant m edia. How ever, these glitches still set a bad precedent for the developing dem ocracies, w here civil society is w eak, independent judiciary m ostly non-existent and m edia hounded into subm ission. That is w hy, no m atter how often I am criticized for raising w hat m ight appear to be m inor issues, I w ill urge m y successor to do the sam e. A m inor issue in the US that w ill be ironed out in a w eek or tw o m ay set a precedent in another country that w ill becom e law for years to com e. We know that this m ust be avoided. This year I have started looking at the business side of m edia and how it m ay affect editorial policy and independent journalism . Again, this is not strictly a black and w hite issue; shades of grey prevail here, w hich is w hy it is essential to be very careful w hen m aking recom m endations and offering advice. This July I have proposed a set of Principles to guarantee the editorial independence of m edia in Central and Eastern Europe and in Central Asia. These principles concern m edia that have been or are in the process of being acquired by Western conglom erates, as is happening in Bulgaria, the form er Yugoslav Republic of Macedonia, Croatia, and in several other O SCE participating States. These Principles set out the criteria that the m edia ow ners take upon them selves to adhere to once they are in a position to financially control a m edia outlet/s in one of the developing dem ocracies. For the tim e being, only tw o m edia giants have signed up: the Germ an Die WAZ-Gruppe and the Norw egian O rkla Media AS, although I have invited m any m ore to support these Principles. I hope that m y successor w ill continue this lobbying effort so that w e w ill be able to ensure that pluralistic m edia takes hold in all of our countries. Before I leave this O ffice, I w ill present to you a report on the Impact of M edia Concentration on Professional Journalism. This study looks at the situation in four EU countries: Germ any, Finland, United Kingdom , and Italy; three new Mem ber States: Hungary, Lithuania, Poland; and one applicant country: Rom ania. As your know, besides our Vienna w ork, I have developed, thanks to donations by participating States and O pen Society Institute, som e very concrete projects dealing w ith the m edia future of the younger generation: five years ago I started several school new spapers in Central Asia. REPO RTS AND STATEMENTS

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Later I m oved to m y largest project for the young people: Defence of O ur Future. This w as a long-term project that has ended in 2003 after three years on the road in South-East Europe. As you know, it w as called the mobile.culture.container. It concentrated m ore and m ore on m edia: establishing student new spapers, initiating radio and video groups. I hope that these initiatives w ill continue to foster understanding betw een the young in a region only a decade ago torn by w ar. That is w hy I call our project In Defence of O ur Future. Its focus w as on the 14 to 18 generation w ho now are facing a dilem m a: either to stay w here they w ere born and to help rebuild their countries or to em igrate. In Defence of O ur Future w as geared at persuading them to stay. This report, our 2002-2003 Yearbook Freedom and Responsibility and our regular Central Asian conference review are the latest publications of m y O ffice. During m y tenure w e have published over three dozen books in several languages and in several countries. I gather this is a first for any O SCE institution. I w ould also like to announce here the establishment of the Veronica Guerin Legal Defence Fund that w ould provide support to journalists w ho are being prosecuted in O SCE participating States. The Fund is nam ed after Irish journalist Veronica Guerin w ho covered organized crim e for Irelandâ&#x20AC;&#x2122;s Sunday Independent. Guerin w as killed on 26 June 1996. The purpose of the Fund is to assist, through voluntary donations by O SCE participating States, hum an rights organizations and individuals, in m aking available appropriate legal defence for those reporters w ho are in need of it. Relevant cases involving journalists w ould be referred to the Fund by O SCE field presences and bona fide non-governm ental organizations. The Fund w ould be adm inistered by the O ffice of the Representative on Freedom of the Media. All of us at som e point leave to new pastures but w e do have a legacy. It is in our w ork, in our books, in the effect w e had, or even in a lack of one. That is also a legacy. I leave you w ith a fully developed and w ell-organized O ffice of the Representative on Freedom of the Media w orking in accordance w ith a functioning m andate in support of free m edia in the O SCE region. An O ffice that is w ell know n and respected and staffed by a dedicated group of professional experts from half a dozen countries. I very m uch hope that our w ork w as not in vain and w ill continue under a new Representative. O ne last rem ark: one of m y staff m em bers just cam e back from a country w here O SCE observed how in a very cynical fashion election results w ere pre-organized. My O ffice w as looking into the terrible 158

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situation that the journalists w ere in. O n several occasions m y staff m em ber w as inform ed especially by journalists how m uch they need the attention of O SCE institutions, of Freedom of the Media and O DIHR, to their problem s and the dangers they face, and how m uch they w ere disappointed by the reduced interest m any journalists and public figures in the West have in their extrem ely dangerous situation. Thank you as I bid farew ell to all of you after six years as the first O SCE Representative on Freedom of the Media.

<http://www.osce.org/documents/rfm/2003/12/1641_en.pdf>

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Speaking no tes fo r Jutta Wo lke, the Acting Head o f O ffice o f the O SCE Representative o n Freedo m o f the Media, fo r the Meeting o f the O SCE Parliamentary Assembly in Vienna o n 19-20 February 2004

Today I am speaking to you on behalf of an O ffice that has been w ithout a Representative on Freedom of the Media for alm ost tw o m onths. This O ffice continues to function in a low -key m anner: w e m onitor, w e identify cases of non-com pliance w ith participating Statesâ&#x20AC;&#x2122; com m itm ents to freedom of expression and freedom of the m edia, but w e cannot enter into a public debate as w e are advised that this w ould be in the w ay of finding a consensus on a new Representative. I therefore turn to you, the legislators, to help the O ffice of the Representative on Freedom of the Media to return to the full im plem entation of its m andate, and appeal to you to urge your governm ents to com e to a solution. This institution is a unique one, unprecedented in the history of international organizations. The idea of a w atchdog established by those w ho are being w atched cam e out of this Parliam entary Assem bly. Now it is in danger of being keyed dow n by a bureaucratic process. My colleagues and I urge you to support the continuation of this O ffice and the election of a new Representative. I w ill now give you a short overview of our long-term projects that w e w ill w ork on in 2004: Media in Multilingual Societies. This pilot project in 2002/2003 pointed out the constructive role m edia could and should play in com bating discrim ination, prom oting tolerance and building a stable peace in m ultilingual societies. The project show ed how the m edia can help overcom e prejudices and intolerance against citizens as m em bers of m inorities. It focused on the m edia in the form er Yugoslav Republic of Macedonia (FYRO M), Luxem bourg, Moldova, Serbia and Montenegro, and Sw itzerland. Country reports w ere presented at a concluding conference in Sw itzerland in March 2003. A publication w as issued later in the year in several languages: English, Albanian, Hungarian, Rom ani and Serbian. We w ill continue to develop the project this year. 160

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Freedom of the Media and the Internet. The project Freedom of the M edia and the Internet included a w orkshop in Vienna in Novem ber 2002 and the booklet From Q uill to Cursor w ith w orking papers from this m eeting, as w ell as a tw o-day conference in Am sterdam in June 2003. The Representative issued the Amsterdam Recommendations on Freedom of the M edia and the Internet at the conference. Contributions from participants w ere com bined in the book Spreading the Word on the Internet: 16 Answers to 4 Q uestions that w as presented by the Representative to the Perm anent Council on 23 O ctober 2003. The O ffice intends to continue this project w ith a round table for O SCE delegations in Vienna and a follow -up Strategy Conference w ith experts in Am sterdam , both in the first half of 2004. The strategies and solutions w ill be published in a fact sheet, pointing out best practices and provided to all participating States. Libel Legislation in O SCE Participating States. Another key area w e focused on in 2003 w as crim inal libel legislation and so-called insult law s in the O SCE region. To discuss w hat steps can be taken to try to deal w ith this problem , a m eeting on 24-25 Novem ber 2003 in Paris issued recom m endations. The O ffice w ill continue follow ing this m atter in 2004 and plans to solicit funds to develop a m atrix on libel in the O SCE participating States. A publication on this subject is also being prepared. Freedom of the Media and National Security: What Comes First? The purpose of this project is to analyse how the w ar on terror in the afterm ath of 11 Septem ber has influenced m edia coverage of national security m atters. We w ill focus on cases in the US and Western Europe as w ell as in Eastern Europe and the form er Soviet Union. How should a m odern dem ocracy balance the right to freedom of expression w ith certain legitim ate national security concerns? We plan to discuss this at a m eeting w ith journalists, editors and m edia experts from O SCE participating States. Legal Reviews. The O ffice has been w orking closely w ith several O SCE field presences on review ing existing as w ell as draft legislation related to m edia. Specific projects have been undertaken together w ith the O SCE m issions in Croatia, Arm enia, Tajikistan, Ukraine, Georgia, Kazakhstan, Belarus and Moldova. We w ill continue providing legal review s in 2004.

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Central Asia. Five Central Asian Media Conferences have been held in the region. Last year w e m et in Bishkek. In 2004 w e plan to hold our annual conference in Tajikistan. The them e for this conference is being discussed and input from delegations is, of course, very m uch w elcom e. We are also distributing to you a list of recent cases of harassm ent of m edia in the O SCE region. This is by far not an exhaustive list, and it show s all of us that m edia continue to face different form s of harassm ent from both governm ents and big business in the O SCE region.

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Inaugural Statement at the Meeting o f the Permanent Co uncil o f 11 March 2004 by Mikló s Haraszti This is a very em otional m om ent for m e, as the task of the O SCE Media Representative is in m any respects the natural continuation of m y life’s w ork. I have to express m y gratitude for the possibility to go on w orking, this tim e internationally, for freedom of the press. First of all, I w ould like to say thanks to all participating States for their support and consent to appoint m e as the new Representative. Sim ilarly, m y cordial appreciation goes to tw o consecutive chairm anships, to the Netherlands and to Bulgaria, for their steering of the difficult selection process. I also have to pay tribute to all the great candidates w ho participated in this contest that w as run on m erit. I know and appreciate the personal sacrifice that som e of the candidates have offered w hen consensus building required it. And, of course, I am acknow ledging the pow erful role played by the first shaper of this m ission, the passionate, devoted personality of m y predecessor, Mr. Freim ut Duve, in the shadow of w hom I w ill have to labour hard to find m y ow n w ay of directing our w ork. Let m e tell you about som e of m y preferences for our future w ork. The greatest challenge is to find the right m easure w hen choosing betw een the different tools that are at the Representative’s disposal, defined by the Mandate. The right balance is needed betw een observation, co-operation, recom m endation, and som etim es protest in order to achieve the greatest possible im pact, alw ays having in m ind that our actual aim is to help. To help all the three players in developing m edia freedom – the governm ents, the press, and the societies – in their unending learning process; helping them hold on to our com m on principles of freedom of the press, and to turn those principles into life. It is in this spirit that yesterday, on m y first w orking day, w hen hearing of the recent crim inal cases in Turkm enistan, I contacted by telephone His Excellency Am bassador Kadyrov and asked him for further inform ation, w hich he kindly agreed to provide next w eek. In m y w ork, I w ill not differentiate betw een the West and the East, betw een new and old dem ocracies. I consider tw o features to be com m on to all the 55 participating States of the O SCE. All of them REPO RTS AND STATEMENTS

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have pledged to adhere to our com m on principles of a dem ocratic society, and I know all of them w ish to belong to this great com m unity of dem ocracies, the com m unity of the northern hem isphere in fact. And alas, a feature that w e also all share in com m on is that no country is perfect. Let m e also refer to som e areas that I w ould focus on in the near future. There are delicate interdependencies and conflicts betw een freedom and other needs of society. O ne of them is freedom of the Internet and the problem of proliferation of hate speech on it. Another is the sim ilarly delicate interdependence betw een freedom of expression and the needs of national security and the fight against terrorism . (I express m y heartfelt condolences to the Spanish people and their Governm ent for the terrible blasts in Madrid this m orning.) A third area is the problem of libel com m itted via the press, and the need to decrim inalize it, or at least exem pt im prisonm ent as a sentence. This also could be an exam ple of how universal the deficiencies are, and of how diverse their im pact could be in different societies. The clause in question is a nineteenth-century legacy in our penal codes, from the tim es w hen deliberate, crim inal ruining of som eone’s reputation – typically com m itted for m oney by a certain type of journal – w as contained by im prisonm ent. Today, incarceration is obviously not the proper handling of defam ation that now adays is generally com m itted for purposes of a political nature. The traditional punishm ent has to be replaced by m ore “civil” ones. But w e have to differentiate w here truly independent courts have applied prison for libel, or w here im prisonm ent of journalists has been utilized by governm ents that w ish to silence critical m edia. Let m e finish by this: I need the co-operation of all of you in our com m on endeavour, esteem ed participating States, and I am offering the sam e to you.

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Statement o n Armenia at the Permanent Co uncil o f 1 April 2004 (Under Current Issues)

After tw o years, the case of the tw o independent TV stations in Arm enia, A1+ and N oyan Tapan, is still not resolved. They lost their broadcasting frequencies in 2002 and have not been able to resum e their operations. My O ffice has been closely follow ing the developm ents w ith regard to the issuing of broadcast licences in Arm enia for the last tw o years. In particular, special attention w as paid to the eight tenders w here the above-m entioned stations participated follow ed by a num ber of court cases. My predecessor, the O SCE Chairm an-in-O ffice and other international bodies have stated on several occasions that the absence of these tw o stations from the airw aves lim its m edia pluralism that I believe exists in Arm enia. I note that no progress has been m ade in rectifying the existing situation and I appeal to the Governm ent to take all the necessary steps to help recreate a broad m edia landscape in Arm enia. In particular, I urge the Governm ent to ensure that the National Com m ission on TV and Radio functions as an independent body. It is also im portant to provide for licensing procedures to be m ore transparent.

<http://www.osce.org/documents/rfm/2004/04/2503_en.pdf>

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Statement o n the March 2004 Ko so vo Events at the Permanent Co uncil o f 22 April 2004 (Under Current Issues)

Today I present to you our report on the role of the m edia in the tragic events that took place in Kosovo in m id-March. At the end of this report, w e offer several ideas and recom m endations as to how to prevent sim ilar situations in the future by providing conditions for a free, fair and balanced m edia in Kosovo. O ut of this report I w ould like to em phasize here the three m ain problem s as I see them : biased reporting, lack of plurality; and the failure of public-service broadcasting. All of them , and especially their com bination, contributed to a practical, even if tem porary loss of Kosovo’s m edia freedom , and did a great disservice to Kosovo’s ethnic peace and dem ocracy. The essence of our findings is that the m ost pow erful broadcasters provided biased coverage on tw o counts. O n 16 and 17 March, they portrayed the death of the children as a cruel, crim inal, ethnically m otivated killing. But w hen, in the w ake of their ow n previous reporting, the real inter-ethnic violence occurred, the TV m edia in particular follow ed up w ith justifying, alm ost supportive coverage. For several crucial days, the m edia in Kosovo borrow ed som e of the characteristics of its ow n unfree, pre-dem ocratic past, features that I personally know too w ell: lack not only of objectivity but also of plurality. What w e w itnessed in Kosovo w as not just one-sided, careless and unprofessional journalism in a post-conflict, volatile society, but it w as a tragic lack of other balancing voices, at least in the broadcast m edia. The last but not the least im portant disappointm ent is the failure of the Public Broadcasting System of Kosovo. Its aim – and its only justification – is to m eet the need for a firm , reliable infrastructure that provides for objective new s; it should be so reliable that it could counterbalance any irrational and irresponsible disinform ation. This is w hy public radio and television in Kosovo (RTK) is supported by the taxpayers of Kosovo as w ell as by the taxpayers of the O SCE countries. And this is w hy first am ong our recom m endations I w ould put the strengthening of public radio and television. It should becom e a 166

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bulw ark of objectivity, fairness and built-in pluralism . The citizens and donors of Kosovo should get their m oneyâ&#x20AC;&#x2122;s w orth. Equally im portant is to provide a legal fram ew ork for the m edia. The third m ost im portant proposal is that, at least tem porarily, there should be regular checks of program m es of the broadcast m edia. My O ffice w ould be w illing to select and appoint, w ith your generous support, a special representative in order to help identify a course of action. O ne last note: w ith m e today is the expert w ho prepared the report, Dardan Gashi, a journalist and the author of tw o books on the Balkans. He has w orked in the region for over ten years as a reporter, as a hum an rights activist, as w ell as for three O SCE m issions: in Bosnia and Herzegovina, in Croatia and in Kosovo. He has also w orked for the International Crim inal Tribunal for Form er Yugoslavia. He is ready to answ er your factual questions if you have any.

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Repo rt o n the Ro le o f the Media in the March 2004 Events in Ko so vo

The research for this report w as provided by an outside expert, Mr. Dardan Gashi, a journalist w ho has w orked in the region for over ten years, as w ell as for the O SCE m issions in Bosnia and Herzegovina, Croatia, and Kosovo, and for the International Crim inal Tribunal for Form er Yugoslavia.

Executive Summary The aim of this report is to evaluate the role of the Kosovar m edia in the tragic events of m id-March 2004 in Kosovo. Even in a society w ith no ethnic conflict, linking the m edia to loss of life entails w alking the thin dividing line betw een defending freedom of expression and condem ning hate speech. But in a post-ethnic conflict society such as Kosovo, biased reporting alone could lead to violence. This report offers ideas and recom m endations as to how to repair the evident deficiencies of the m edia in order to prevent sim ilar situations in the future and provide for a free, fair and balanced m edia landscape in Kosovo. While displaying the w eaknesses it did, the m edia w as not, of course, intentionally instigating violence. But the m edia has a responsibility to react properly and professionally to serve the best interests of the population of Kosovo. Without the reckless and sensationalist reporting on 16 and 17 March, events could have taken a different turn. They m ight not have reached the intensity and level of brutality that w as w itnessed or even m ight not have taken place at all. In particular, the clear spin given by the m edia in accounts of the fatal drow ning of a group of children on 16 March seem s to be unsupported by any journalistically valid accounts. Neither can one say these accounts w ere inform ed by a desire to help avoid violence. In fact, m edia coverage seem s to have led to m assive dem onstrations of a violent nature involving 50-60,000 people on 17 March, as com pared to the 18,000 w ho dem onstrated prior to the coverage of this incident in the m edia. It should also be noted that the m edia, specifically the broadcasting sector, displayed unacceptable levels of em otion, bias, carelessness, and falsely applied â&#x20AC;&#x153;patrioticâ&#x20AC;? zeal. In particular, the reporting on the 168

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evening of 16 March by the three m ain Kosovar TV channels deserves the strongest possible criticism . The perform ance of RTK (Radio and Television of Kosovo) during the riots, as w ell as on the evening before, should be view ed w ith special concern, since this is the only public broadcaster. In contrast, the m ainstream print m edia, w ith som e unfortunate exceptions, displayed rather m ore constructive behaviour. Editorials and m ost of the reporting in the dailies Koha Ditore and Z eri helped to decrease tensions. The events also m ade it evident that there is a severe lack of m utual trust betw een UNMIK Public Inform ation offices and local journalists. How ever, it w ould be prem ature and unfair to say the m edia developm ent efforts of the O SCE Mission in Kosovo (O MIK) and others have failed. O ne has to acknow ledge that free m edia is still a novelty in Kosovo. O MIK, the Tem porary Media Com m issioner (TMC), the donors and the O SCE Representative on Freedom of the Media w ill have to strengthen their efforts to im prove the quality and accountability of broadcasters in Kosovo. Finally it should be noted that the events of m id-March w ere the first serious crisis that the Kosovo m edia has ever faced. While this report show s there is credible concern that the electronic broadcast m edia m ight have been one of the reasons for the outbreak of violence, longterm sanctions could prove counter-productive.

Backgro und Sto ry This is the event related by the Kosovar Albanian m edia that is believed to have sparked the riots: O n 16 March, six Kosovar Albanian children from the village of Caber, located in the m ajority Serbpopulated m unicipality of Zubin Potok, w ere playing on the Serb side of the river Iber. This divides the village of Caber from a Serb neighbourhood. At som e point, an unidentified group of local Serbs w as said to have charged the children w ith a dog. While escaping them , four of the children jum ped into the river. After a terrible experience, only one of the four survived. The surviving child is also the only eyew itness source the m edia continued to refer to. It w as never explained how the tw o other children â&#x20AC;&#x201C; w ho did not jum p into the river â&#x20AC;&#x201C; also survived. Nor w as it m ade clear w hether they w ere also attacked by REPO RTS AND STATEMENTS

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the Serbs allegedly chasing the group or by the dog, and if not, then w hy not. Finally, neither of the tw o other surviving children, nor their view s, w ere ever presented in the m edia during the critical days. The present report does not set out to speculate about the reasons, possible organizers or motivation behind the violent events in Kosovo in mid-March. Nor does it aim to speculate about the circumstances of the tragic death of the three children from Caber. Its sole purpose is to analyse the role that the media (in particular the TV broadcasters) played or might have played to fuel or provoke the intensity and the nature of the events w hich led to the massive ethnically motivated violence and the loss of life and property, including religious and cultural sites. Circum stantial evidence and opinions gathered by a num ber of institutions, as w ell as by the author of this report, suggest that the w ay the new s about the drow ning of the children w as qualified and presented by the m ainstream m edia constituted the casus belli, so to speak. What the organizers of extrem ist anti-UNMIK dem onstrations had failed to achieve in the past, the new s concerning the drow ning of the three children succeeded in doing. It offered a perfect em otional m otive for popular outrage and a good tool for sentim ental m anipulation by extrem ist individuals and groups longing for escalation. There is hardly anything that provokes stronger feelings and greater outrage than crim es against innocent children, the m ore so if they are com m itted on ethnic grounds in a volatile environm ent, as is the case in Kosovo. How ever, the relevant question is not w hether w e know today w hat caused the tragic deaths of these children or w hether an investigation m ight even prove the initial m edia allegations to be right. Rather the fundam ental question is, could the m edia have know n for a fact, beyond any doubt, that the children w ere victim s of an ethnic crim e at the tim e it dissem inated this new s? Un fortun ately, th ere is n o supportin g eviden ce th at th e m edia presen ted th e n ew s after h avin g ch ecked all facts to th e best of th eir kn ow ledge, n or th at th e m edia w ere even in a position to kn ow beyon d an y doubt th at th e ch ildren h ad been victim s of an eth n ically m otivated crim e. In fact, it seem s th ey did n ot even listen carefully to th eir ow n in terview s w ith on e of th e ch ildren w h o survived th e in ciden t. D ifferen t statem en ts by th e survivin g ch ild, aired on 16 M arch , referred to a distan t Serb h ouse, to Serbs w h o h ad sw orn at th em from th e h ouse, to a dog, an d to th e fact th at th ey w ere afraid. 170

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At no point in the interview s aired did the child use the w ords, “We w ere chased by a group of Serbs w ith a dog.” The TV stations chose, how ever, to spin the story as if the Serbs had actually chased Albanian children to their deaths w ith a dog. Even the respected daily Koha Ditore on 17 March had as its frontpage headline: “Three Albanian children drow n in Iber, w hile escaping Serbs.” The public w as left to believe, that beyond any reasonable doubt, a despicable, ethnically m otivated crim e had been com m itted. To date, the m ain TV broadcasters and other m edia have failed to explain to the public: • that they had based their story on statem ents by only one of the three surviving children; • that they had m isrepresented and/or exaggerated the statem ents of the child in their headlines; • that they had ignored or/and censored statem ents by appropriate authorities cautioning them not to jum p to prem ature conclusions as the case w as still being investigated; and that • they chose to interview partners w ho seem ed to confirm their story, no m atter that those interview ed had no credible m eans of know ing w hat had really happened (this is in particular the case w ith RTK, the public broadcaster). To date, several senior representatives of the Kosovar m edia refuse to acknow ledge any link betw een their reporting on 16 and 17 March and the events that follow ed over the next few days. This is the equivalent of saying that the events of 17 March and of the follow ing days w ould have happened anyw ay, no m atter w hat the m edia had broadcast the previous night. This is both unconvincing and m isleading. A reconstruction of som e of the events on 16 March (before the m edia began airing headlines about the alleged killing of the children by Serbs), w hen placed in contrast to the next day, w ill probably prove w rong the alleged total lack of connection betw een the reporting and the riots.

The D emo nstratio ns o n 16 March Since the end of the w ar in June 1999, dem onstrations have becom e routine in Kosovo. With few exceptions these events have usually ended peacefully and have failed to attract m assive crow ds. As March m arks the anniversary of the start of the NATO cam paign in Kosovo, it is routinely used by different groups to express their opinions in the REPO RTS AND STATEMENTS

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streets. Every year since June 1999, diverse groups and organizations originating from the form er KLA (UCK) have called for Kosovo-w ide dem onstrations (“All in Support of the Liberation War”). This tim e, the dem onstrations w ere organized in protest against the arrests and prosecution, on w ar crim es charges, of a num ber of form er KLA officers by either the UNMIK authorities in Kosovo or by the ICTY in The Hague. O n 16 March this year, in alm ost all m ajor tow ns of Kosovo (including all 27 Albanian m ajority m unicipalities), am ong them Mitrovica-South, supporters of these organizations gathered and voiced their dissatisfaction w ith the above-m entioned arrests. According to UN police figures, the overall num ber of protesters w as 18,000. This is in m arked contrast to the next day, the violent nature of the riots notw ithstanding, w hen som e 50-60,000 people took to the streets. Also in contrast to the previous day, school directors in m any tow ns, having heard the new s about the drow ning of the children, ordered students and school children to take part in the dem onstrations in protest over this “m onstrous crim e”, as did m any other institutions and organizations. As one of the organizers of the riots in Gjilan/Gnjilane put it in an interview : “Yesterday (16 March) w e had few er dem onstrators than today …” Even though the rhetoric used during the pro-KLA rallies on 16 March w as extrem ely hostile tow ard the international presence – in particular tow ards the UNMIK adm inistration – rem arkably the dem onstrations ended peacefully, w ith no m ajor incidents reported. In Mitrovica-South itself, the dem onstrators m arched tow ards the bridge w hich divides the tow n but m ade no efforts to cross it nor to charge the security forces. This is also in contrast to the follow ing day, w hen the num ber of dem onstrators w as dram atically higher and angry protesters engaged both the security forces and local Serbs in lethal confrontations. Sim ultaneously, local Serbs in the villages of Gracanica and Caglavica w ere continuing to m aintain a blockade of the tw o m ain roads that connect Pristina w ith the southern and the eastern parts of Kosovo. This protest had begun over a drive-by shooting w hich left a m em ber of the Serb com m unity in Caglavica w ounded. The local Serb com m unity attributed this incident to an unidentified Albanian gunm an and provoked a few m inor incidents involving Kosovar Albanian passers-by. The num ber of local Serb protesters in both blockades w as estim ated in the hundreds, w hile no attem pts w ere 172

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m ade by Albanian protesters participating in the pro-KLA dem onstration to “unblock” the roads. This also stands in contrast to the pattern of behaviour on the follow ing day, w hen a large num ber of young Albanians, including som e w ho had gathered in the centre of Pristina on a rally “Against Violence” (follow ing a hand-grenade attack on the residence of Kosovo President, Ibrahim Rugova), decided to m arch tow ards Caglavica, there to engage in confrontations w ith the security forces and local Serbs. Halil Matoshi, one of the leading veteran journalists in Kosovo, and editor of the w eekly Z eri1 described the role of the TV m edia during the events in an editorial as follow s: “The rebellion w as a chain reaction that spread across Kosova w ithin a few hours. It w as the spark of Caber w hich ignited the fire that as a consequence burned our hom e of Kosova. O f course, in tim es of advanced technology, the rebellion w as transm itted live on TV and this strongly influenced every teenager in Kosova to w ant to be part of that picture that w as being aired nonstop for 24 hours. This picture had a lot of influence on anyone w ho had no idea w hat w as happening and suggested that now everyone had to rebel, everyone had to use this opportunity to grab som ething of w hat had been left from the rule of law and the law itself.” Another Kosovar Albanian colum nist, Ylber Hysa, com pared the w ay people tend to take m edia new s for granted in Kosovo w ith the experim ental broadcast in 1938 by O rson Welles in the United States, w hen he aired the “new s” that Martians w ere invading the country. Back then m any people believed the “new s”, w hich generated panic. Ylber Hysa: 2 “… no m atter if the new s is true or not, w e tend to believe w hat w e like to hear. So that w as the case w ith the w ounding of the Serb in Caglavica; the local Serbs took it for granted that it m ust have been an Albanian perpetrator and blocked the roads. The sam e thing happened later as the new s w as spread about the drow ning of the Albanian children.” But w hile the situation on 16 March seem ed tense, there w as nothing to suggest that the next day w ould lead to the greatest eruption of violence in post-w ar Kosovo, nor did it seem to represent a great exception to previous sim ilarly uneasy situations. 1

Halil Matoshi w as a prisoner of conscience in Serbia for nearly a year during 1999. The O ffice of the Representative on Freedom of the Media w as involved in trying to secure Mr. Matoshi’s release. The colum n quoted is from the w eekly Z eri of 27 March.

2

In the daily Koha Ditore, 2 April.

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Media Co verage o f the Fatal D ro w ning o f the Three Children Later that night, the m ain Albanian-language TV broadcasters began airing new s of the fatal drow ning of the three Kosovar Albanian children in the river Iber. It m ust be noted that at this stage it w as absolutely unclear w hat had happened or even if all the m issing children w ere dead, since not all the bodies had been recovered. In journalistic term s, even the incident as such w as not a fact until the respective authorities had confirm ed it. What the m edia reported that evening w as, how ever, letting the audience believe that the case w as absolutely clear: three innocent Albanian children had drow ned in the cold river Iber w hile escaping from Serbs w ho w ere chasing them w ith a dog. A cow ardly, brutal and ethnically m otivated crim e!3 The first new s about the incident, aired during prim e tim e on alm ost all TV channels, w as already connecting the death of the children w ith a potentially ethnically m otivated crim e. Later in the evening, additional “evidence” w as produced suggesting to the audience that, beyond any doubt, the children had been victim s of a vicious ethnically m otivated crim e, com m itted by local Serbs. What follow s are excerpts from transcripts of the TV m edia coverage of this case during the late evening on 16 March.4 These w ere broadcast several tim es during the night and throughout the next day w ith m inor, unsubstantial changes.5 Particular attention should be paid to the new s presenters w ho guided the story in the “no doubt this has happened” direction. It goes w ithout saying that this constituted breaking new s until later in the day on 17 March, w hen other violent events dom inated the screens.

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3

In all truth and fairness it should also be stated that ongoing police investigations m ight w ell prove that this indeed w as the case. How ever, it w as by no m eans possible for the m edia, on the evening of 16 March, to know for a fact, beyond any reasonable doubt w hat had happened, nor is it clear to date.

4

The quoted transcripts are courtesy of the O ffice of the Tem porary Media Com m issioner in Pristina.

5

Even as the regular program m e w as aired, a new s bar at the bottom of the screen constantly rem inded the audience about the incident.

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RTV 21 (an independent private broadcaster, founded after the w ar): New s Flash at 22:00, 16 March. Presenter: Tw o Serbs chased four Albanian children today around 16:00 in the village of Caber and, w hile trying to escape from them , the Albanian children jum ped into the Iber river. To learn m ore details w e have our correspondent in Mitrovica… The correspondent from Mitrovica on the phone: It is feared that a m ajor tragedy happened today at around 16:00 in the village of Caber, Zubin Potok m unicipality, the only village inhabited by Albanians in this m unicipality. As 13-year-old Fitim Cerkin Veseli recalls, he and five other children around his age w ere w alking along the bank of the Iber river. Then, tw o persons cam e out of a Serb house w ho had a dog and started chasing the children. From fear, four of the children jum ped into the river hoping to m ake it to the other side by sw im m ing. But, since the current w as too strong, only Fitim Veseli m ade it to the other side, w hereas nothing is know n about the fate of Egzon Deliu, 12, Avni Veseli, 11, and Florent Veseli 9… While the “crim inal” nature of the incident w as underlined through the attribution of the narrative to the 13-year-old w itness, no other sources to confirm or deny these facts w ere m entioned, leaving the im pression of a clear case of an ethnically m otivated crim e. The sam e new s w as broadcast at least half-a-dozen tim es during the night and the follow ing m orning. RTK – (the only public broadcaster, founded after the w ar) Blic New s at 23:00, 16 March. Presenter: Three Albanian children, Florent Veseli, 8 years old, Avni Veseli, 11 years old, and Egzon Deliu, 12 years old, w ent m issing in the w aters of the Iber river, m eanw hile Fitim Veseli, 14 years old, has been found. They are victim s of an attack by a group of Serbs in the village of Caber (…) Before seeing the m aterial, w e’ll go live to our reporter Petrit Musolli, w ho is at the scene. Reporter from Mitrovica on the phone: The police, KFO R and TMK have not yet found the bodies of the three children m issing in the river Iber, having fallen in after being chased by a group of Serbs. At the m om ent, police, KFO R and TMK have put som e nets close to the bridge of Binaq in Koshtove in the Iber river, expecting to find the bodies of Florent Veseli, 8 years old, Avni Veseli, 11 years old, and REPO RTS AND STATEMENTS

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Egzon Deliu, 12 years old… so far, the police have not issued an explanation nor given any inform ation other than the story of Fitim Veseli, the only one found. The police said that all the inform ation they had w as from Fitim Veseli … News presenter: How is the situation in Mitrovica, is it under control, how are the citizens reacting? Reporter: The situation in Mitrovica is calm at the m om ent. Alm ost all citizens are heading tow ard the village of Caber to learn m ore about the fate of the three children m issing in the Iber river. O f course, not “alm ost all citizens of Mitrovica” w ere m arching tow ard Caber that evening. While it is evident that a critical m ass of young Albanians w as m oving tow ards the village, by no m eans did the num ber constitute “alm ost all citizens”. The reporter chose to dram atize the situation and the new s presenter failed to ask him if this indeed w as the case, thus leaving the im pression that a popular uprising over a brutal crim e w as already underw ay. After the presentation by the correspondent (2 m inutes and 16 seconds), a statem ent by the regional UNMIK Police spokesperson w as aired: Tracy Becker - UNMIK Regional Police Spokesperson: “Initially, som e have said that the incident w as ethnically m otivated. Since for the m om ent w e don’t have such inform ation, w e cannot confirm it.” (The airtim e given to Tracy Becker w as 12 seconds). What follow ed w as an interview w ith one of the surviving children for 1.42 m inutes. Interview w ith the child (FitimVeseli): RTK : Fitim , can you tell us about today’s event, how did it happen? F.V.: Yes, w e, som e cousins of m ine and som e friends of m ine, and m yself w ere w alking and w e w ent close to the river w hen som e Serbs w ith a dog sw ore at us from the house. We looked at them , I can identify them if I see them , and I know their house, and w e tried to escape but w e couldn’t as w e w ere close to the river. My brother, Florent Veseli, 9 years old, w as w ith m e, he can’t sw im . I put him on m y back, I sw am 15 m etres, I could not sw im m ore than that. He fell from m y back, I don’t know anything m ore about him , and the other tw o sw am in front of m e, I don’t know anything about them either. But there w ere another tw o w ho did not go in the Iber river, they w ere further aw ay from us, further aw ay from the bridge. It w as 4:00 p.m ., 176

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3:55 p.m ., and there w as a Serb hidden in the m aize, and w e tried to tell them to run aw ay, w e called them but they did not hear us and w e jum ped in the Iber but they survived, I don’t know how the others survived but m y brother w ho w as on m y back fell from m y back because the w aves w ere big, the Iber w as big, he fell from m y back, I cam e out from the Iber som ehow tired. RTK : Who helped you to com e out of the river? F.V.: I cam e out m yself. NO TE: It is clear that the boy never said him self: “We w ere chased by Serbs and a dog.” It w as RTK w hich decided to qualify the story in the w ay they did, thus m isinterpreting the child’s statem ent. Im m ediately after the interview w ith the child, there w as a live studio interview w ith Halit Berani (for 1.46 m inutes), a senior regional activist of the “Council for the Defence of Hum an Rights and Freedom s” in Mitrovica. It should be noted that w hile Mr. Berani is view ed as controversial by som e international and local institutions, he w as invited to (and did) testify in the trial against Slobodan Milosevic in The Hague and so is considered a credible source by som e. The fact that Mr. Berani w as invited to talk does not itself constitute a problem , nor necessarily does w hat he said as it is up to him to qualify things his w ay. But the fact that his conclusive claim s w ere at no stage challenged by the interview er nor balanced by inviting other appropriate authorities, represents serious m isconduct on the part of RTK. It should also be noted that Mr. Berani w as not an eyew itness to the incident itself, but w as invited as an “expert w itness”. To this extent, there is no reason w hy other “expert w itnesses” w ere not present. Interview in the studio in Pristina w ith Mr. Berani: Presenter: The Chairm an of the Council for the Defence of Hum an Rights and Freedom s in Mitrovica, Halit Berani, is w ith us in the studio. Mr. Berani, w hat kind of inform ation do you have about this case? H.B.: Today around 16:00 in the village of Caber, Zubin Potok m unicipality, w hile six children from the above m entioned village w ere playing, a group of Serb bandits attacked these children, the Serb bandits also had a dog, and sw earing at their Albanian m other they forced the Albanian children to run aw ay. Tw o of them m anaged to hide in the roots of the w illow trees by the river Lum ebardh [editor’s note: recent Albanian nam e of the Iber river], w hereas the other four fell into the river. It is know n that the Lum ebardh river, apart from being very deep, has very cold w ater and is fast-m oving. Most probably the REPO RTS AND STATEMENTS

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children could not sw im w ell. There is no inform ation about the fate of three of them , w hereas one survived after m aking it to the other side of the river. Presenter: So w hat w ill your reaction, from the Council, be to this tragic event? H.B.: We are used to these Serbian bandits. As w ell as that case, tonight at 19:17 in the suburb called “7 Septem ber” they threw a bom b near three m ulti-storey buildings. We think that is in revenge for w hat happened in Caglavica, the case that show ed w hat the Serbs are w illing to do w hen the situation is getting calm in Kosova. Presenter: Mr. Berani, thank you! Mr. Berani’s unchallenged allegations and the w ay the new s presenter and the reporter qualified the incident led to yet another conclusion: that the incident w as undoubtedly one of the m ost sinister possible character. RTK also chose to allocate a disproportionate am ount of airtim e to the content that spoke in favour of the fact that this w as an ethnically m otivated crim e: 258 seconds, w hile allocating only 12 seconds to the police spokesperson. Disturbing too is the probability that RTK and the other TV broadcaster, KTV, w ho had their correspondents on the ground on the evening of 16 March, m ight have w illingly chosen to ignore the statem ents calling for calm m ade by UNMIK and UN Police. Tracy Becker, UNMIK Regional Police Spokesperson in Mitrovica, stated for this report: “At about 22:00 w e received intelligence inform ation that som e Albanians from the areas w ere com ing to Caber to protest the death of the children. I w ent back to the m edia, specifically to RTK and KTV, and gave them an on-cam era interview during w hich I appealed for people to stay calm and stay hom e so that police can focus on finding the children rather than deploying m anpow er to handle crow ds. I again em phasized that w e had no evidence to support the rum our of Serbians killing Albanian children. I requested RTK and KTV to air the footage in order to calm the public and decrease ethnic tension. To m y know ledge they did not air m y interview.” Georgy Kakuk, the regional UNMIK spokesperson, also stated for this report: “During that evening it did not seem to m atter to the journalists w hat w e said. They seem ed to have m ade their conclusions before. Whatever w e said, it w as disregarded.” As far as this report can establish, RTK did not air the appeals by the UN Police. 178

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While the reporting over the death of the children w as the m ain focus of the m edia on 16 March, it is also im portant to look, at least briefly, at how the other events of the day w ere reported. The pro-KLA Kosovo-w ide dem onstration w as extensively presented during prim e tim e, and also in the subsequent new s program m ing during the evening. All three TV broadcasters displayed a high degree of sym pathy w ith the dem onstrators and their dem ands, w hile at no tim e w ere the view s of the institutions challenged by the dem onstrators presented. The ICTY and UNMIK w ere not invited to present their view s over the serious allegations by the dem onstrators and those w ho m ade speeches in connection w ith the arrests of form er KLA officers on suspicion of w ar crim es. The arrests w ere generally qualified as unfair, ill-intended, as crim inal and as a service to Belgrade, a fact that should have forced the editors to seek opinions from the ICTY and UNMIK, or other independent sources, given the serious nature of the allegations and the sensitivity of the issue in itself. The dem onstrations by local Serbs in Caglavica and Gracanica w ere also extensively covered. In general term s, the reporting over these events w as rather m ore balanced. In fact, had the m edia reported the case of the three children the sam e w ay as they did the events in Gracanica, probably Kosovo w ould not have experienced the situation it did during the follow ing days. The reason for the dem onstrations by the local Serbs w as a drive-by shooting, w hich left a Serb m ale w ounded. The crim e w as attributed by local Serbs to an Albanian suspect. The m edia, w hile reporting the case, respected the rule that the crim e w as still being investigated and did not jum p to conclusions or speculate about the nationality of the suspect or the nature of the crim e. Whether they did so out of professionalism , or out of bias because the victim w as a Serb, is a question one cannot answ er.

Repo rting o f the Events o n 17 March O n 17 March, as the violence had begun to spread throughout Kosovo, all TV channels sw itched to special program m ing including live broadcasts from the scenes of violent unrest. The new s about the drow ning of the children w as still being presented the sam e w ay as the previous night, how ever this tim e it w as accom panied by im ages and reports about the violent protests that had begun in Mitrovica and had been provoked by the new s about the tragic death of the children. REPO RTS AND STATEMENTS

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It is a rather com plicated exercise trying to evaluate the quality of the reporting during such a crisis. It is at this stage w hen freedom of speech can easily be confused w ith incitem ent and hate speech and vice versa. While it m ight be considered careless and sensation-driven or even an incitem ent, the fact that the m edia decided to air live footage som etim es even w ithout com m ent from these scenes (including hospitals filled w ith blood-covered casualties), it also represents a w idespread phenom enon of how m odern m edia report in real-tim e. What is w orrisom e is the extrem ely one-sided anti-Serb and som etim es anti-UNMIK nature of the reporting that had begun to dom inate the TV screens. The m edia did little, if anything at all, to calm dow n the situation on 17 March. The w ay interview s w ere conducted, their content and the failure to balance the statem ents by providing different opinions cannot be even rem otely described as professional. In fact, the nature of m ost of the interview s and som e of the reports by correspondents represent a clear case of incitem ent. What dom inated the screens on 17 March, w as a m ixture of dram atic and often disturbing footage from the scenes of violence, the repetition of the story about the tragic death of the children and interview s w ith individuals and personalities w ho expressed understanding for the riots, condem ned the “barbaric Serb” killing of the children and criticized the conduct of the security forces engaged by the protesters. Program m ing containing balance, calls for calm and reason w as a rarity during this day. O nly on 18 March did the m edia begin to give sufficient space to constructive statem ents and actively engage in calm ing the situation dow n. Here is a just a brief selection of som e of the interview s and contributions by correspondents aired on 17 March. RTK Special Editio n, 17 March In an interview, LDK Mem ber of Parliam ent and form er senior hum an rights activist, Nekibe Kelm endi, said: RTK : Som e say the revolt is understandable … N.K .: O f course it is understandable. There have been m any things going w rong here … RTK : How do you see this? The police are using force and tear gas against Albanian protesters, w hile the Serbs are allow ed to block roads for days? N.K .: This is a clear double-standard practice that UNMIK has applied 180

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from the beginning. This is the effect of so-called “positive discrim ination” … In an interview, another MP, Berat Luzha, said: RTK : The tragic events of last night, caused by Serbs and the inefficiency of the security forces. How do you evaluate this and also today’s protests? B.L.: This is all due to the failure of UNMIK and the double-standard policy tow ards the ethnic groups here … In an interview w ith another PDK MP, Arsim Bajram i, Mr. Bajram i states: “The barbaric act of the killing of the children … has provoked a legitim ate revolt by the Albanian population. This should be a lesson for the international com m unity”... O ther interview s of a sim ilar nature and content, w ith suggestive questioning by the journalists continued to be aired during the Special Edition of RTK and throughout the day. KTV, 17 March Correspondent from Gjakova/Djakovica: “The criminal acts of the Serb population in the north have been condemned by the population of Gjakova during peaceful demonstrations. They demand an end to these terrorist acts against the Albanian population. In an expression of solidarity, the protesters marched tow ards the Serb street, the Serb church w as set on fire. The situation is calm, w hile the church is burning.” Later an interview w ith Ali Ahm eti, the leader of the largest Albanian Party in the form er Yugoslav Republic of Macedonia, w as aired. He explained the reason for the riots: “The reason is the death of the three children w ho, w hile trying to escape Serb m onsters, drow ned in the river …” This w as also a statem ent by the PDK (the Dem ocratic Party of Kosova), read out by the presenter w ithout com m ent: “… The killing of the children is a w ell-planned act by Belgrade, executed by its agents in Kosova …” Another interview w as aired w ith Shaqir Shaqiri, w ho w as presented as a m em ber of the organizing com m ittee of the protests: “Yesterday w e had few er dem onstrations [referring to the pro-KLA dem onstrations of the previous day] than today and this gives a good picture to the international com m unity. This is a popular revolt and an expression of the accum ulated frustration w ith the w rong policies of UNMIK” (w hile the interview ee w as praising the event, burning cars and other debris left by the dem onstrations could be seen). REPO RTS AND STATEMENTS

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Another new s report that day deserves a closer look, as it is a good exam ple of bias by the m edia w hen reporting on victim s of a different ethnicity. According to a correspondent from Gjilan/Gnjilane: “Thirty w ounded and one dead is the toll after today’s events. The dead person is a Serb, w ho according to w itnesses cam e out of his house w ith a Kalashnikov and provoked the protesters, they then took aw ay his gun, subsequently the Serb died of his w ounds.” O n closer examination, it is clear that the reporter offers a “good” reason for the “death” of the Serb, w ho had “provoked” the demonstrators in the first place. Even more interesting, for the media the Serb w as not “killed” or “lynched”. He simply “died” after having been disarmed. The case w as reported identically in some print media the next day. But according to the appropriate authorities in Gjilan/Gnjilane, this is w hat occurred: “It seem s to be true that the victim w as arm ed. How ever he did not use his w eapon. It also is true that the crow d disarm ed him . How ever he did not just fall dead after being disarm ed. In reality, and, according to a senior local official, the victim , after having been disarm ed, w as stabbed and then beaten to death for alm ost half an hour by dozens of young Albanians, cheered by the crow d. What had happened in reality w as a m ob lynching, w hich the m edia presented as a very ‘clinically clean’ sudden death.” It should be noted, that this is not an isolated case. O n num erous occasions, Kosovar Albanian m edia have show n tendencies to dow nplay stories w hen Serbs have been victim s of possible ethnically m otivated crim es. In som e cases the m edia have gone so far as to suggest that the casualties w ere victim s of their fellow Serbs w ho had killed their com patriots in order to blam e the Albanians.

The Print Media o n 17 and 18 March It is clear that TV played the m ain role during the events, as the three m ain TV channels reach at least 70 per cent of the population. It is also assum ed that the new spapers based their story of the drow ning of the children m ainly on TV reporting during the evening of 16 March. Nonetheless, the role of the new spapers should not be dow nplayed as, in general, they exercise im portant influence w ith the socalled “opinion leaders” and the educated elite of the com m unities. For the sake of keeping this report at a reasonable length, only headlines, m ain titles and quotes of special interest are presented. Com pared to the analysis of the TV footage, w hich w as random ly sam pled and by no m eans com plete, all the relevant print m edia output during the crucial days has been exam ined.

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17 March The m ain stories in the new spapers w ere the sam e as those on TV: the drow ning of the three children, the pro-KLA dem onstrations and the blockade of the respective roads by local Serb protesters. K oha Ditore. Main headline: “Three children drow n in Iber, w hile escaping Serbs.” While the headline did clearly suggest the incident w as an ethnically m otivated crim e, the story itself w as rather balanced, and space w as given to the UN Police to express its view s. The coverage of the pro-KLA protest w as balanced and m oderate, the sam e is true of the coverage of the Serb protest. Zeri daily. The m ain headline is not related to any of the three m ain stories of the day. The incident involving the children is presented on the front page: “Three Albanian children w ent m issing in the river Iber. (…) They w ent m issing w hile escaping tw o Serbs.” The Serb blockade is given a full page and in general the reporting w as fair and balanced. O ver one page is dedicated to the pro-KLA protest. Here extensive space w as allocated to a variety of serious allegations against UNMIK and other institutions involved in the prosecution of w ar crim es suspects, but not a single line w as offered to other view s, nor to these respective institutions. Bota Sot. The new s about the children w as presented on the front page. At this point no allegations w ere m ade tow ard the possibility of an ethnically m otivated crim e. How ever, a different title on the front page reads: “Serb gangs have started their activities to expel Albanians from the north.” This, it w as suggested, had been a consequence of a report by the Berlin based think-tank ESI. Another editorial implied that the hand-grenade attack on the President’s residence w as a terrorist act organized by the Serbian Prim e Minister Vojislav Kostunica. The proKLA protest and the Serb blockade w ere given no special attention. Epoka e Re. Main headline: “Serbs drow n three Albanian children in the river Iber.” Next prom inent headline from the pro-KLA protests: “This w as also chanted at the protests: ‘UNMIK bew are, KLA w ill burn you dow n’.” Three additional full pages w ere dedicated to the event. While extrem e anti-UNMIK statem ents w ere carried, no quote from an UNMIK official w as given space.

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The next day (18 March) the print m edia, in general, w hile reporting extensively about the riots, did not engage – w ith a few exceptions – in any serious m isconduct. In fact the tw o respected dailies, Koha Ditore and Z eri, besides offering a rather m ore balanced picture of the events, published statem ents and editorials appealing for calm and a stabilizing of the situation. Unfortunately, the tw o other m ain dailies, Bota sot and Epoka e re, did continue to use anti-Serb and to som e extent anti-UNMIK rhetoric. How ever, this constitutes a long-term problem , as both these m edia outlets have behaved so in the past and continue so to date. It should, how ever, be stated that to the credit of these tw o outlets, they also contributed to pacifying the situation, through editorials and the publishing of appeals for calm . In general term s, the print m edia cannot be blam ed specifically for having negatively influenced the situation. In fact, aside from w orrying language used by som e of the print m edia, they w ere m ore engaged in calm ing dow n the situation than escalating it. In particular the dailies, Z eri and Koha Ditore as w ell as the w eekly Z eri should be com m ended for their w ork during the crisis.

Co nclusio ns O ne cannot judge the media w ithout taking into account the overall situation in Kosovo, and the social and political problem s that still exist. It is generally accepted that m edia cannot generate sentim ents or hostilities overnight. Instead, w hat they do is to strengthen existing or previously generated stereotypes and anim osities. What the broadcasting m edia in Kosovo did, especially on 16 March, w as to inject into a situation already dom inated by fear, prejudice and uncertainty: • em otional, unsubstantiated reporting about a tragic event involving innocent children, • one-sided reporting about the unjust arrests of “liberators” by UNMIK and the blockade of the m ain roads of Kosovo by rebellious Serbs. This is not to say that som e of the prejudices and fears had not originally been generated by the sam e m edia in the past. The situation created on 17 March and during the follow ing days, cannot be separated from the TV reporting on 16/17 March. In particular, TV journalists and their editors failed to behave according to the ethics of their profession, acted em otionally and put their 184

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“patriotic” duty, as they saw it, first. The Kosovar Albanian TV m edia decided to qualify the incident of the drow ning of the three children as cases of death caused directly and beyond any doubt by hostile, local Serbs. No evidence w as offered to support this and the child interview ed never claim ed this, as w as clearly and vigorously presented by the m edia. The coverage of the riots created a new dim ension of biased reporting w hen references to the violence w ere preceded by “justifications”. The strong visuals used w ere there not to appal but to incite. At this stage it should be noted that all three channels m entioned have been founded since the w ar in 1999 and have been generously financed by international donors. In particular, RTK – the only public broadcaster of Kosovo – has enjoyed substantial financial and technical support, including training, provided by the O SCE and other international donors and organizations. While this report does not deal w ith the general quality of the m edia in Kosovo, one should ask w hether the unsatisfactory perform ance during these crucial days represented just an accidental m istake or a pattern that becam e evident only during the tragic events. The fact that the m edia decided to ignore statem ents by UNMIK and the UN Police on 16 March, and to som e extent also during the follow ing day, is another m atter of concern. While strong criticism should be voiced of the m edia in this regard, this also clearly indicates a seriously flaw ed relationship and lack of m utual respect betw een the UNMIK press operation and the local m edia. This present report did not set out to exam ine the role of the Serb-language m edia during the crisis. There is no Kosovo-w ide Serblanguage broadcaster operating in Kosovo. The respective local TV and radio stations usually air new s program m ing generated in Serbia, in addition to their ow n program m ing. During the crucial period, m ost of these m edia provided extensive airtim e to new s from Serbia. While no credible analysis is available, circum stantial evidence collected by m edia m onitors from the O SCE in the region suggests that there is also reason for concern regarding their program m ing. In order to exam ine the role of the Serb-language m edia in Kosovo during these days and also in order to analyse the perform ance of the electronic m edia in Kosovo in general – including radio – the Tem porary Media Com m issioner in Kosovo (TMC) asked a num ber of broadcasters to provide his O ffice w ith the tapes of the program m es aired during those turbulent days.

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Reco mmendatio ns • A full investigation into the perform ance of the electronic broadcast m edia, Kosovo Albanian and Serbian, during the events of 16/17 March should be conducted. This should not only investigate the content of the footage aired, but also look at footage, statem ents and evidence that w as not aired. • The findings of this investigation should be presented to the public in Kosovo and to the donors, as w ell as to the journalists in question. • O MIK and the O SCE Representative on Freedom of the Media should hold a special m eeting w ith donors in order to evaluate the perform ance of the m edia and discuss further plans for action. • In particular, the perform ance of RTK, as the only public broadcaster, needs to be evaluated. The fact that only four out of eight m em bers of the RTK Board of Directors appeared for the first board m eeting after the events is w orrying and needs to be properly addressed. • The senior m anagem ent and the editorial com ponent of RTK need to be strengthened. Ways, scope and nature of appropriate m easures should be considered w ith the aim of enhancing the quality and the accountability of the public broadcaster. • While there is a legitim ate need to further regulate and strengthen the accountability and transparency of the public broadcaster, this should also be dealt w ith by introducing a necessary legal fram ew ork – for instance, through a Law on Broadcasting and a Law on Public Service Broadcasting. • The Law on the Establishing of the Independent Media Com m ission, w hich w as drafted last sum m er and is aw aiting approval by the O ffice of the Prim e Minister, should be urgently presented to Parliam ent for consideration. • Self-regulating, non-governm ental institutions, such as journalists’ associations and Media Councils, need to be established and/or strengthened. • Serb-language m edia in Kosovo relies m ostly on inform ation provided by broadcasters in Serbia. Media broadcasting new s program m ing generated out of Kosovo should be held accountable for content, regardless of origin, according to the regulations valid in Kosovo. 186

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• A local Kosovo-w ide Serb-language broadcaster should be established. • O MIK should be advised to re-establish the Media Developm ent Section. Particular attention should be placed on training, education of young journalists and m onitoring of the local m edia. Funding for training w ould be required. • In addition to m onitoring the print m edia, regular, random checks of program m es aired by the electronic broadcast m edia should be conducted. This should be done outside the O ffice of the TMC, w hose role is to enforce the TMC Code of Conduct, and should focus on evaluating the quality of the broadcasters for the purpose of identifying genuine problem s that are not related to legislation. • The O SCE Representative on Freedom of the Media should appoint a special representative for a lim ited duration to assist O MIK, the TMC and the donors to identify problem s and action needed to be taken in order to rectify the situation. This representative could also serve as a new and neutral asset in re-establishing a constructive dialogue betw een the Kosovar m edia and the institutions involved. • The TMC should be supported in his efforts to enforce existing regulations, and in particular article 2.2. of the TMC Code of Conduct for Broadcast Media, w hich states: “Broadcasters w ill not broadcast any m aterial that encourages crim e or crim inal activities or w hich carries im m inent risk of causing harm , such harm being defined as death, injury, or dam age to property or other violence.” • Necessary sanctions notw ithstanding, O MIK, the O SCE Representative on Freedom of the Media and donors should increase their activities to financially and otherw ise support the Kosovo m edia. • UNMIK Public Inform ation com ponents need to take action in order to ensure that UNMIK’s m essage is represented in a fair and consistent m anner in the future.

<http://www.osce.org/documents/rfm/2004/04/2695_en.pdf>

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No n-paper o n Anti-Semitism in the Media fo r the Berlin Co nference o n Anti-Semitism, 29 April 2004

Sessio n 4: The ro le o f the media in co nveying and co untering prejudice: info rmatio n and aw areness raising Considering the different issues to be addressed in Session 4, and to com plem ent his speech, the RFO M w ould like to m ake the follow ing com m ents and suggestions on the role of the m edia w ith respect to anti-Sem itism . The Media and Co ntempo rary Anti-Semitism The Middle East conflict is fuelling a new w ave, and seem ingly a new version, of hostility against Jew s around the w orld. Alm ost all surveys carried out in recent years agree that “classic-style” violent acts against Jew ish targets have fluctuated in tandem w ith m edia coverage of events in the Middle East. That fact alone deserves scrutiny to see if the m edia has done its best in term s of the quality of coverage of the Middle East conflict, and to see if it acted on its double responsibility to fight both lslam ophobia and Judophobia. But m any observe that, in addition to the old hate-speech discourse, a new and som etim es ideologically-m otivated resentm ent has em erged. Som e observers even identify it as a “new anti-Sem itism ”. Uncom fortably for Europe’s post-WW2 dem ocratic pride, som e m ainline press outlets, and som etim es even Europe’s hallm ark public-service broadcasters, have been accused of generalizing or of biased reporting and com m enting on Israel. This note does not aim to define and conceptualize contem porary anti-Sem itism . Here, the goal is just to set out a fram ew ork for further com m ents on the role of the m edia in countering such reoccurrences of an old prejudice. 188

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Co vering “Classic” Anti-Semitism Since the Holocaust, the European press has done a great job in exposing the traditional themes of anti-Semitism w hich had provided the ideologies for discrim ination and genocide. These fallacies are w ell identified and generally despised in Europe. Just a brief list show s this: the Jew s are responsible for both capitalism and Com m unism ; Jew s rule the w orld by proxy and get others to fight and die for them ; the Holocaust is a Jew ish lie, w hile forgeries like The Protocols of the Elders of Zion or the blood-libel accusation of ritual child m urder are all true. Today, any re-em ergence of open anti-Sem itism is m ostly due either to right-w ing fringe groups or to extrem ists in the Muslim com m unity. There is a job here, too, for im proved press coverage: as if the old threat w ere w ell under control, reoccurrences of these “classic” ideologies are not alw ays reported in the m ainstream m edia. Many people point to a certain under-reporting of the presence of outspoken anti-Jew ish doctrines, for exam ple in the educational background of Muslim extrem ism . These underlying prejudices usually get uncovered only if they are accom panied by physical attacks on Jew ish individuals, or vandalizing actions against Jew ish targets. How ever, w e cannot exclude the possibility that these traces of the classic anti-Sem itic them es and forgeries could still serve as fertile soil for new intolerance. It reportedly em erges in som e of the m edia by w ay of opinionated, often em otion-filled reporting and com m ent on the m ere existence, the battles, and the failures of the State of Israel; on the fate of the Palestinian people and the causes that led to the delay in the foundation of their ow n State; or on the perceived com placency of Am erican and European Jew ish standpoints tow ards the perceived sins of the State of Israel. Co vering “New ” Anti-Semitism Is there a “new ” anti-Sem itism , in fact? I am not sure, even if the new w ave of biased reporting or ideological generalization about Israel can be proven to exist. Part of it m ight sim ply be the nature of the encounter betw een m odern m edia and the sort of m odern w ars that dem ocracies are w aging. Since the daw n of the television age, journalists covering all such engagem ents have becom e strict dem anders of peacetim e hum an rights standards, notw ithstanding the fact that the enem y’s ow n behaviour m ight be low er than that expected under the rule of law. This phenom enon could be described as the “Stockholm syndrom e” of w ar reporting, if w e w ish. REPO RTS AND STATEMENTS

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Another part of it is probably real, but nobody can prove it beyond doubt because the essence of a supposed “new ” anti-Sem itism lies in its not m anifesting itself via direct hate speech. And so if it w ere proven, it w ould turn out to be the old version anyw ay. Nevertheless, the very accusation of seeing a “new w ave” of prejudice convinces m e that the press m ust do a better job in covering a situation w ith so m any variables. Instead of perpetually defending the press from suggestions that it has given in to prejudices, let m e offer here a short “checklist” on possible shortcom ings, a list to be am ended or rejected by Europe’s seasoned, erudite editors and journalists. A Tentative Checklist against Bias “New anti-Sem itism ”, if it exists, w ould supposedly consist of generalizations about “Zionism ” and “the Jew s”, or biased Israel-bashing. All this w ould be disguised as legitim ate, politically correct criticism . So w hen devising m edia strategies to counter contem porary antiSem itism , or its sem blance, the first task is to differentiate it from the legitim ate criticism of the policies of the Governm ent of Israel. Here is a first possible “checklist”: • Does our coverage obscure the fact that the Israeli Governm ent, like any other dem ocratically elected governm ent, is not only deserving of criticism but is actually living w ith it in every political aspect? Is it m ade clear to the readers of our com m ent that m ost of our legitim ate critical points against the Governm ent of lsrael are originally produced w ithin Israel’s passionately pluralistic political and m edia scene, notw ithstanding the state of w ar there? Furtherm ore, is it recognized that Jew ish people all over the w orld are taking different sides in the debate over Israel’s policy questions? • In the light of the above, the allegation that “Israel” or the “Jew s” “reject every criticism of Israel as anti-Sem itism ” could safely be identified as one of the “new ” form s of anti-Sem itic prejudice. • O ne could safely detect som e latent anti-Sem itism in the hypothesis that anti-Sem itism is “caused” by “the Jew s”, by “Israel”, or for that m atter by anything else on Earth. Faulting the Jew s for antiSem itism is perhaps the oldest anti-Sem itic prejudice, and is today, just as it w as in the past, the only com m on feature of all form s of anti-Sem itism . • The sam e goes for finding excuses for anti-Sem itism . Poverty, the Middle East conflict, Israel’s illegal settlers, its illegal executions of terrorists, and the still ongoing occupation of Palestinian territories 190

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are each as bad an excuse as som e older excuses used to be in Europe: Germ any’s hum iliation in the peace treaties after WW1, the sufferings of the w orking classes under capitalism , or the overrepresentation of Jew s in trade and journalism . • Also, the w ord “but” should figure on our checklist. Check if otherw ise com m endable condem nations of anti-Sem itism are not follow ed by a “but . . .”. When checking for involuntary bias, the press could ensure that it does not m ake false equations; not even out of a sense of striving for objectivity. • To start w ith, objectivity is not reciprocity. None of Israel’s num erous faults could lead to a labelling of Israeli dem ocracy as totalitarianism , nor to relating its present-day violence to genocide, or, as too often happens, to “a” or to “som e” Holocaust. Avoiding such harsh equations could sim ply be a m atter of style and taste. In order to preclude charges of prejudice, editors could apply the tools w hich the m odern liberal press has developed to use w hen handling m inorities. • When the Star of David is equated w ith the sw astika, or any use is m ade of that ancient religious sym bol in caricatures, especially for the purposes of m arking Israeli brutality, it can hardly be explained aw ay to the Jew ish readers of European m ainstream journals, not even by pointing to Israel’s state sym bols. Editors m ust know that the pride felt in the existence of Israeli dem ocracy has becom e an integral part of today’s European Jew ish identity, and such visuals are unavoidably perceived as a deliberate tram pling on those peoples’ ow n feelings. • Sim ilarly, w hen the im agery of “the Zionists” is presented in the m anner of the traditionally caricatured Jew, it is hard to avoid a frightening resem blance to past propaganda. I am not only referring here to right-w ing propaganda. In m y ow n childhood, w hen Soviet-bloc countries did not recognize the State of Israel the Com m unist dailies used the sam e im ages, and that w as not benign either. • When African, Arab, Muslim , or other non-Jew ish m inority principals in Europe or Am erica are correctly described as “com m unity leaders”, w hile Jew ish ones are often term ed “lobbyists”, that approach deserves scrutiny that goes beyond linguistics. REPO RTS AND STATEMENTS

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As data collected by the Stephen Roth Institute at Tel Aviv University, and other researchers, m ake clear, the rise in anti-Sem itism in Europe coincided w ith the beginning of the Second lntifada and Israel’s m ilitary and political response. Therefore the quality of the conflict’s coverage is crucial, if w e seek a press approach that is conscious of the possible fall-out. • Editors could check if it is clear to their audiences that the lntifada w ar they are w atching (the terrorist attacks on civilians, and Israel’s heavy-handed responses) w as actually started no t to force a peace or to end the illegal occupation, but rather to stop the prom ising negotiations over the ending of the occupation, the Palestinian State, and Jerusalem . O f course, that fact does not alter the need for an Israeli peace strategy, but it does present a m ore accurate picture of the difficulties.

<http://www.osce.org/documents/rfm/2004/04/2837_en.pdf>

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Regular Repo rt to the Permanent Co uncil o f 8 June 2004

This is m y first quarterly report since I took office in March. In the past three m onths m y O ffice has been very busy dealing w ith both urgent concerns and w ith m ore strategic issues of freedom of the m edia. But before being m ore specific on any of these issues, please allow m e som e w ords about the guiding principles that shaped the priorities of our w ork. Principles The m ain m ission of the O ffice is of course unchanged: the m onitoring of violations of press freedom , and early w arning of dangers threatening journalists. These dangers typically appear w hen governm ents m isuse their overw helm ing legal pow er to subordinate the m edia to their ow n political goals. But w e should actually expect m ore from governm ents than sim ply not abusing the m edia. Governm ents, supervising authorities, prosecutors, and even independent courts need to exercise selfrestraint in handling the m edia. More than that, they need to play a proactive role in safeguarding the freedom of the press. It is not sufficient for governm ents to refer to their com pliance w ith the law if that law can actually harm freedom of the press. As you can see from the results of m y first country assessm ent visit, it is only if the authorities are not obstructive that a balance can be achieved, for exam ple, in the ow nership structure, in the licensing procedures, and in the distribution of frequencies betw een broadcasters. In m y w ork, I tried to com e up w ith future-oriented, practical, constructive recom m endations, in order to assist governm ents that are ready to take advice. I hope the results can be seen in the Kosovo report and the Ukrainian report. Freedom of the m edia is inseparable from the actual existence of a free m edia w ith the independence, quality and responsibility that dem ocracy deserves. Governm ents can harm or even ruin freedom of the press, but they cannot create a free press. When, for exam ple, public-service broadcasters behave as w illing propagandists against the opposition in a country, as w as reported from Belarus, or w hen they blam e a national m inority for unproven crim es, as reported from Kosovo, they do a disservice to freedom of the m edia w hich can be corrected only by the broadcasters them selves. REPO RTS AND STATEMENTS

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Co untry Repo rts And now to th e specifics. Let m e start w ith th e tw o m ajor reports w e did. I w ent on m y first assessm ent visit in April, to Ukraine. The trip w as m ade at the invitation of the Governm ent of Ukraine, and w as organized by the Ministry for Foreign Affairs, for w hich I am grateful. The report w as distributed last w eek. O verall, m edia pluralism is present in Ukraine. Different view s are represented, politicians at all levels are regularly criticized in the m edia, even if the m edia does not yet provide for a dialogue betw een different sides and view s. Here are some of my observations and recommendations: Ukraine has several law s that I can recom m end to all O SCE participating States, including som e of the older dem ocracies. • Ukraine is one of the few O SCE participating States that has taken the bold m ove to decrim inalize libel. • Am endm ents to the Law on Television and Radio, passed in 2003, lifted lim its on advertising revenues, thus allow ing the m edia to becom e m ore independent of different “sponsors”. • A law that defined and banned censorship w as signed in 2003. • This law also prohibits state and local governm ent agencies from filing for defam ation claim ing “m oral dam ages”. Nevertheless, certain recent developm ents are w orrying and raise questions about the authorities’ active com m itm ent to freedom of expression. • The broadcasting m edia is heavily tilted tow ards the Governm ent, often representing only one view out of several prevalent in the country. • The practice of sending out so-called temniki, basically coverage guidelines for editors, should be abolished and replaced by a transparent public relations strategy w ith clearly defined goals and objectives. • The ending of the rebroadcasting of Radio Liberty/Radio Free Europe and of other quality w estern program m es in Ukraine, although ostensibly done for com m ercial and legal reasons, nevertheless raises questions regarding its tim ing during an election year. • The current “tw o-headed” licensing procedure is not only com plicated but it also leaves room for political favouritism . 194

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â&#x20AC;˘ The Gongadze case, often raised by m y predecessor, is still under investigation three Prosecutor-Generals later. For the sake of public trust in the rule of law w e need answ ers in this seem ingly neverending investigation. O n Ko so vo , Serbia and Mo ntenegro . My original Kosovo report w as presented to you on 22 April. It w as the result of urgent concern expressed in the Perm anent Council that, before and during the violence that erupted in m id-March in Kosovo, objective and pluralistic inform ation practically collapsed, especially on public broadcasting. O n World Press Freedom Day in early May, accom panied by expert Dardan Gashi, I visited Kosovo to present our findings and our recom m endations. The visit received w ide m edia coverage. I held m eetings w ith local and international officials, including the then Special Representative of the UN Secretary General, Harri Holkeri. I m et m edia executives and m any journalists. I gave a press conference in Pristina, and â&#x20AC;&#x201C; in an event that speaks volum es about the situation there â&#x20AC;&#x201C; I held a separate press conference, along w ith the Tem porary Media Com m issioner Robert Gillette, for Serbian journalists, in Mitrovica, w hich w as still sealed by barbed w ire. Am ong the recom m endations m ade in the Report, I m ostly focused on the need to strengthen the board and the m anagem ent of the public service broadcaster RTK. I believe this is the single m ost im portant m essage, both sym bolically and institutionally, that the O SCE can put across. RTK could and should be the m ain agent of ethnic peace in Kosovo, but today its new sm aking does not even provide for the Serbs of the province. I have raised this m atter w ith the Head of the O SCE Mission in Kosovo, the Tem porary Media Com m issioner and the UN-SRSG, w ho specifically w elcom ed m ore vigorous involvem ent by m y O ffice in Kosovo. I believe that there is a need to m onitor RTK in the long term , focusing not only on concrete violations of the Broadcasting Code but on tendencies and editorial policy, so as to avoid a sim ilar situation in the future. As I indicated in m y recom m endations in April, this could be done by an outside expert w ho could m ake suggestions on how RTK m ight im prove its perform ance. I have approached several O SCE participating States for voluntary contributions to fund this w ork.

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Freedo m o f the Media Co ncerns Armenia. We are w aiting for an answ er to our letter from 19 April 2004 to the Foreign Minister, asking for inform ation about the ongoing investigation into violence against journalists during rallies on 5 and 13 April 2004. In Azerbaijan, w e w ere glad to hear that Sadiq Ism aylov, a journalist from Baku Kheber new spaper w ho w as detained in connection w ith dem onstrations in O ctober 2003, has been released from prison. He has appealed against his conviction and a four-and-a-half-year suspended prison sentence. We w ill continue to follow his case. Regarding Belarus: on 28 April, after the release of tw o reports by Rapporteur Christos Pourgourides, the Parliam entary Assem bly of the Council of Europe (PACE) passed a set of resolutions and recom m endations on disappeared persons, including a journalist, and on the persecution of the press in Belarus. The Assem bly called the situation in Belarus a “system atic violation of fundam ental freedom s and obligations under the Helsinki Final Act”, and asked m y O ffice and several other international bodies “to take appropriate action.” Recently, several delegations at the Perm anent Council criticized Belarus State Television for broadcasting program m es solely aim ed at discrediting the political opposition in the country. I am currently looking into options on how to proceed w ith regard to these serious com plaints. In March I asked the Minister of Justice of Belgium about the police search of the house and office of Hans-Martin Tillack, the Brussels correspondent for the Germ an w eekly Stern. I understand that police confiscated docum ents related to his investigative w ork, his bank statem ents, his com puter and his m obile telephone. He him self w as taken aw ay to the Palace of Justice for questioning and detained for 10 hours. I have asked for inform ation regarding the Articles of the Crim inal Code that w ere invoked in the procedure, and if it is ensured that a journalist’s sources of inform ation rem ain protected. I am still w aiting for an answ er, w hich, no doubt, w ill be com ing shortly. In April, I asked the Minister of Econom y in France about the Bill to Prom ote Confidence in the Digital Econom y (know n as the LEN). Several NGO s have expressed their concerns because this Bill w ould m ake Internet hosts responsible for censoring w eb content in the absence of any judicial process. In addition, a provision of the Bill w ould allow freedom of expression to be lim ited not only by public concerns but also by the necessities of the audio-visual technologies. I look forw ard to receiving the Minister’s answ ers. 196

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O n Italy. I have suggested to the Italian Delegation that I could hold a w orkshop in Rom e, an inform al hearing, on the pros and cons of the country’s new m edia legislation know n as the Gasparri Law. The Law aim s both at the fulfilm ent of the 20 per cent upper lim it for television m arket concentration, asked for by the Constitutional Court in 1994, and at preparing for the era of m odern technology of broadcasting w hich w ill bring countless new channels into existence. There are several questions I w ould like to raise dealing strictly w ith the legal aspects and the concrete im plications of this law. The gist of the questions is w hether this com bination law fulfilled its antim onopoly function. At our Rom e event experts w ho are both supportive and critical of this law could take part. I look forw ard to hearing the answ ers from the Italian Governm ent, as w ell as from the NGO com m unity w hom I have also approached. In Serbia and Mo ntenegro , the editor of the Montenegrin daily Dan Dusko Jovanovic w as killed last m onth. I fully support the statem ent issued by the O SCE Mission and expect the authorities to conduct a sw ift and thorough investigation. In Russia, I am concerned w ith the recent dism issal of Leonid Parfenov, the director and anchorm an of the political program m e N amedni, on N TV. I understand that Parfenov w as fired after he aired an interview w ith the w idow of a form er Chechen rebel leader, Zelim khan Yandarbiyev, violating orders from the channel’s m anagem ent. In an official statem ent, N TV said the program m e had been taken off the air because of a contract violation by Parfenov, but m any journalists, including Parfenov him self, see the action as a clear-cut case of censorship. In Turkmenistan, I have raised the fate of w riter Rakhim Esenov and tw o other individuals w ho w ere accused of crim inal activity in relation to Esenov’s book, The Sacred Wanderer. According to m edia NGO s , the charges concern the act of “sm uggling” Esenov’s novel, w hich is banned in Turkm enistan, from Russia. I have the book here w ith m e. I have not been able to read it all yet but it is quite clear that it deals w ith a sixteenth-century story. I am glad that the authorities released Esenov and his friends, but they are still banned from travelling and they still face conviction. O n a personal note, let m e rem ind the Council that I w as in a sim ilar situation in 1973 w hen I w as arrested in m y native Hungary for attem pting to “sm uggle” the m anuscript of m y book, A Worker in a Worker’s State, outside the country. REPO RTS AND STATEMENTS

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I have asked for the charges to be dropped in the Esenov case, since as far back as the Helsinki Final Act, signatory States agreed to provide for a free flow of ideas across borders. I have also approached PEN International on this case and asked for their support. Legal Assistance At the end of this report, let m e turn to m ore strategic issues and to som e good new s. We had several positive developm ents regarding our O fficeâ&#x20AC;&#x2122;s legal assistance to the participating States. I advised on and then w elcom ed the w ithdraw al of an am endm ent in Albania lim iting broadcasting of m acabre scenes that m ight harm the victim s or cause panic. The legal opinion provided by m y O ffice w as that the am endm ent w as too vague and thereby capable of restricting freedom of the m edia to an unacceptable degree. I also w elcom ed the decision by President Nazarbaev of Kazakhstan to reject a draft m edia law that did not m eet international standards. I also notified him that m y O ffice stands ready to support a redrafting by providing international experts. In Uzbekistan, w e are review ing three m edia-related law s. We are in the process of looking for further w ays to assist w ith legal im provem ents in other participating States and any suggestions from you, dear colleagues, w ould be very w elcom e. O SCE-Wide Campaigns There is w elcom e new s regarding our cam paign for im proved libel legislation in the O SCE region. As you know, w e are talking not just about decriminalization of this offence, but, if I m ay m isuse the English language, especially about de-prisonization. Ukraine, as I have already m entioned, and Moldova have just decrim inalized libel, a step w hich I applaud, and Croatia has a vibrant ongoing debate on this issue. I have just forw arded som e legal review s related specifically to this topic to the Georgian authorities and I have started a sim ilar exercise in Azerbaijan. We have started to assem ble a pioneering database on the different legal regulations on libel in the O SCE countries, w hich w e hope w ill be a valuable tool in our shaping of recom m endations that w ill be helpful throughout the O SCE. Finally, for inspiration in the exercise of abolishing crim inal libel and insult law s, I am distributing today a publication w ith texts from an expert round table organized in Paris last Novem ber that includes concrete recom m endations for im provem ent. 198

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My O ffice also further elaborated on our efforts to safeguard the freedom of the Internet in this era w hen it is under pressure from hate speech. For next w eekâ&#x20AC;&#x2122;s Paris m eeting on the issue of hate speech and the Internet, w e helped collect the answ ers of the participating States to a questionnaire provided by the Chairm an-in-O ffice on this subject. There is a considerable degree of uncertainty about how to counter hate speech on the Internet. Both our side-event in Paris, and our sem inar in Vienna on 30 June, called Guaranteeing M edia Freedom on the Internet, are preparations for our second Am sterdam Conference in Septem ber. I w ould like to thank the Netherlands and Germ any for their generous contributions to this project. My O ffice w ill try to identify w ays of countering hate speech w ithout restricting freedom of expression on the Internet. O n o ur future plans and pro jects The CiO has approached m y O ffice to organize a study trip for Georgian journalists to Vienna and Sofia this sum m er. In Septem ber w e are planning the annual Central Asian Media Conference and in O ctober w e hope to be able to organize our first Caucasus Media Conference. For these projects w e w ill need voluntary contributions and I ask for your generous support.

<http://www.osce.org/documents/rfm/2004/06/3091_en.pdf>

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Assessment Visit to Ukraine: O bservatio ns and Reco mmendatio ns 8 June 2004

The O SCE Representative on Freedom of the Media Miklós Haraszti, accom panied by Adviser Alexander Ivanko, visited Kyiv, Ukraine, from 6 to 8 April 2004. This w as the Representative’s first assessm ent visit since taking over his post. The trip w as m ade at the invitation of the Governm ent of Ukraine and w as organized by the Ministry for Foreign Affairs. The purpose of the trip w as to assess the current state of m edia freedom in the country and to provide the authorities w ith recom m endations. The Representative appreciates the co-operative approach of Ukraine, and he has prepared this Report in the sam e spirit. Miklós Haraszti m et w ith governm ent officials, parliam entarians, journalists, and representatives of non-governm ental organizations. Am ong those he had talks w ith w ere, in order of the m eetings: Ivan Chizsh, Chairm an of the State Com m ittee for TV and Radio Broadcasting; Victor Krizhanivskii, Deputy Head of the Departm ent for Foreign Policy of the Adm inistration of the President; Deputy Foreign Minister O leg Sham shur; Mem bers of the Verhovna Rada (Parliam ent) Com m ittee for Freedom of Expression (including its Chairm an, Mikola Tom enko); Vice Speaker of the Verhovna Rada O lexander Zinchenko; Mem bers of the National Broadcasting Council, including Chairm an Borys Kholod. The Representative also m et new spaper editors (Z erkalo N edeli, Silski Visti), print and television journalists, publishers, m edia ow ners, experts, and non-governm ental organization (NGO ) activists.

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Po sitive D evelo pments – Pluralism and Go o d Legislatio n There are a number o f co mmendable develo pments in the situatio n o f the Ukrainian media. O verall, m edia pluralism is present in Ukraine. The m ere quantity of m edia outlets is im pressive. Different view s are represented; politicians of all ranks are regularly criticized in the m edia. A lively discussion of public issues – alas, not exactly a dialogue – is taking place. The general legal fram ew ork in the m edia field is considered satisfactory by independent experts from both inside and outside the country. In som e instances, recent m edia-related law -m aking in Ukraine w as even m ore forw ard-looking than relevant legislation in older dem ocracies: • Ukraine is one of the few O SCE participating States that has taken the bold m ove to decrim inalize libel. The current O SCE Representative and his predecessor have been advocating libel decrim inalization in the O SCE region for over three years. • Am endm ents to the Law on Television and Radio, passed in 2003, lifted lim its on advertising revenues. The advertising m arket has been grow ing at 40-60 per cent each year, thus allow ing the m edia to becom e m ore independent of different “sponsors”; • A law that defined and banned censorship w as signed in 2003. This law m akes it a crim e to “deliberately intervene in the professional w ork of journalists”, w hile also lim iting the am ount of dam ages sought in defam ation cases; • In a m ove that is beneficial for vigorous public discussion in any country, the law also prohibits state and local governm ent agencies from filing for defam ation claim ing “m oral dam ages”; • Although repeated com plaints are m ade about harassm ent or incapacitation of independent m edia outlets in this pre-election year – am ong them the possible political utilization of the tax authorities – a w elcom e step on the part of the President of Ukraine w as his support for the proposal of an election-year m oratorium on tax inspections of m edia com panies, and its approval by Parliam ent. How ever, several serious concerns still exist in the legal field, especially in relation to the new Civil Code. These concerns have been m ade public by ARTICLE 19, a highly regarded expert NGO that has provided legal support to the Representative for several years. The Representative w ould be happy to forw ard these concerns to the relevant authorities. REPO RTS AND STATEMENTS

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The Representative is ready to provide support in drafting other relevant m edia legislation. Several officials noted during the trip that they w elcom ed such assistance. The Representative is also evaluating the project proposals provided to him by officials during his visit. O ne senior official underlined that the authorities had tried to be “transparent” in their relationship w ith the m edia. Nevertheless, certain recent developm ents are of a w orrying nature and question the authorities’ full com m itm ent to, or at least their readiness to do everything they could to ensure, equal chances for everyone to exercise freedom of expression.

Mo no po lizatio n o f Televisio n Bro adcasting Altho ugh, in general, po litical pluralism do es exist in the media in Ukraine, w here it seems to be least develo ped is in the bro adcast media, specifically o n televisio n. So even as private televisio n bro adcasting exists at the natio nal and lo cal level, the Go vernment’s po sitio n is prevalent o n the mo st po pular channels that also have the largest area reach. Th e D eputy Speaker of th e Rada, O lexan der Zin ch en ko described the situation in the electronic m edia as “highly m onopolized”. He added that: “Society develops only w hen there is a discussion, w hen public institutions debate, but there is no spirit of discussion on our television.”

According to a report issued in 2003 by the Ukrainian Press Academ y, the accom panying graph show s how the six m ain TV channels – the largest in term s of area reach – report on political events: 202

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The one view dominating the airw aves is that of the Government. The problem seem s to stem from three m ain causes: • an ow nership structure that is closely connected to, or influenced by, the current Governm ent; • temniki (guidelines) w hich play an im portant role in hom ogenizing the coverage of public issues (see the chapter about temniki); • an institutional fram ew ork of frequency allocation and licensing that allow s for favouritism (see the chapter about the licensing authority). This situation could be resolved quite quickly w ith respect to all these three m ain com ponents if the political w ill to do so w ere present on the part of the Adm inistration, the Rada m ajority, and the licensing authorities. In the short term , m uch depends on the broadcasters them selves. There is the possibility to enhance pluralism , objectivity and balance; to offer m ore airtim e to events and view s that are not in line w ith the Governm ent or the Rada m ajority.

Temniki – Ho mo genizatio n o f Co verage o f Public Issues Fo r a lo ng time temniki have o perated as internal guidelines, issued fro m abo ve o n a daily basis, as to ho w the media sho uld co ver current events. During the trip, several officials confirm ed that temniki do exist. O ne senior governm ent official referred to them as “press releases”, or “public relations efforts”. “Temniki express the view of one side on certain them es in a pluralistic situation w here there are m any sides; it is w elcom ed if temniki catch the attention of the editors, but, just like public relations efforts anyw here, they are w ithout any coercive pow er,” noted State Broadcasting Com m ittee Chairm an Chizsh. The Chairm an of the Rada Com m ittee on Freedom of Expression, Mikola Tom enko, on the other hand, called them “a form of censorship”. The O SCE Representative w as show n several of these temniki. There are five reasons w hy the Representative considers the temniki an illegitim ate tool of governm ental influence on the press. 1. They are not press releases but instructions on how to cover political developm ents in the country; 2. They are anonym ous and do not refer to the author/authority that sends them out, w hich excludes the notion of a legitimate PR effort; 3. They are m eant to be read not by the public but by editors of seem ingly independent m edia outlets, w hich can only be seen as REPO RTS AND STATEMENTS

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a m eans of exerting pressure on the editors; reportedly they are follow ed in the editorial w ork at the m ain television netw orks; 4. They float in cyberspace, in other w ords they are not dissem inated to those editors w ho are prepared to use them ; the editors have previously received the right Internet m ail addresses and passw ords, thus they can access the temniki seem ingly at their ow n initiative; 5. They in fact originate from inside the Presidential Adm inistration. In the end, the effect is that of a new form of governm ental guidance, although the m ethods used to produce and dissem inate the temniki are in no w ay illegal. Most governm ents try to influence m edia coverage of their activities. How ever, w hatever authority issues the temniki, the Representative recom m ends it should refrain from doing so in the future. Any governm ental public relations efforts em ployed should be transparent, even accountable; clear in w here the m essage com es from , and w ho is its intended audience. In their current form , temniki only rem ind journalists and the public alike of instructions that used to be issued by the Com m unist authorities to the m edia. Thus they reinforce an old fear that coverage of public issues in the press, and as a consequence, public opinion itself, are the products of a governm entsponsored conspiracy.

Natio nal Bro adcasting Co uncil – Licensing w itho ut Achieving Pluralism The mo no po ly situatio n in Ukraine is facilitated, even perhaps caused by an artificially maintained bureaucratic duality in the licensing o f the bro adcasting o utlets that allo w s fo r po ssible po litical favo uritism in frequency allo catio n. According to Article 22 of the Law on the National Television and Broadcasting Council of Ukraine [N.B. English as is in the original]: “The National Council shall issue the licences for broadcasting, cable broadcasting, retransm ission and w ired (cable) radio broadcasting, as w ell as for the tim e of broadcasting. (…) A licence of the National Council shall be the sole and sufficient docum ent, w hich grants the television/radio organization the right to broadcast according to the conditions specified in the licence. Television/radio organizations shall not be subject to other special registrations…”. How ever, according to Article 28, the actual frequency allocation is a m atter supervised by a non-independent governm ent agency, on the 204

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decisions of w hich the National Council can be “dependent” if it so w ishes: “The National Council shall co-ordinate the distribution of frequency bands allocated for the television and radio broadcasting, installation and use of the radio frequency broadcasting facilities w ith the General Radio Frequencies Departm ent under the Cabinet of Ministers of Ukraine.” Borys Kholod, Head of the National Broadcasting Council, defended this decision-m aking duality as a “technical necessity”. How ever, w hen it com es to adherence to technicalities, still according to Article 28, it is the National Council again w hich can w ithdraw licences based on technical non-com pliance: “Within the distributed radio frequency bands, the National Council shall supervise the adherence to the established procedure of the radio frequency spectrum utilization, radio-electronic facilities and cable television system s, radio em ission norm s and allow ed industrial interference w ith the radio reception.” During the Representative’s fact-finding trip, m em bers of the National Council acknow ledged that tw o separate agencies – the Council itself and the General Radio Frequencies Departm ent – w ere involved in providing the necessary fram ew ork for broadcasters to becom e operational. In m any cases w here licensing w as rejected by the Council, the reason cited w as the decision of the Frequencies Departm ent of the Governm ent. It also becam e clear, for exam ple, in the legal dispute betw een Channel 5 and the Council, that not even the country’s court system could clarify the disputed decisions taken under the present, tw o-headed structure. Splitting the licensing authority betw een tw o bodies – one politically fairly independent in its design, the other a purely governm ent body – leads to decision-m aking that cannot exclude arbitrariness and favouritism , thus threatening the political pluralism of the broadcasting industry. Even if not utilized politically by the Governm ent, this duality of unclear responsibilities leads to confusion, and results in unresolved cases. This duality also contradicts the constitutionally required legal security of licensing. It creates uncertainty about the rule of law, and forces the licensees to seek political favours instead of com plete com pliance w ith the law. The case of Channel 5 show s that the artificial duality in the licensing procedure, and the finger-pointing of the tw o involved authorities, could be used to m aintain a quasi-m onopoly situation favourable for the Governm ent. REPO RTS AND STATEMENTS

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Channel 5 has been described to this O ffice as the m ost objective in its coverage of political events; but even if that is disputable, nobody questioned the fact that in term s of coverage of public issues, it aim s at a difference compared to that of the three dominant channels. But w hile the com petitors have near total area reach, Channel 5 can only broadcast over approxim ately 25-30 per cent of the territory. The station failed to receive additional regional frequencies. The m anagem ent at Channel 5 had com plained to this O ffice that there w ere political reasons behind the denial of local licences. For its part, the Council, w hen explaining the denial of regional licences to Channel 5, and thereby its failure to com e up w ith a truly pluralistic broadcasting landscape, referred to the decisions of the General Radio Frequencies Departm ent. To avoid such a situation in the future, w hether it be intended or unintended, a unified licensing procedure should be established. It should be both m ore flexible and transparent, and should concentrate the responsibilities under one body, for exam ple, the National Council. (It should certainly be a body that is established w ith guarantees of political independence and plurality.) O nly w ith the help of a clear structure of responsibility/accountability in licensing could the Governm ent and the legislation fulfil its obligation to take a proactive approach tow ards all-dim ensional m edia plurality, w hich is one of the m ost im portant aspects of m edia freedom .

Radio Free Euro pe/ Radio Liberty and O ther Western Statio ns, and their D isco ntinued Rebro adcasting o n Radio D o vira and o n Radio Ko ntynent D uring the last year, practically all privately-o w ned radio statio ns that helped to retransmit the pro grammes o f Western-o w ned public-service netw o rks in Ukraine, have enco untered bro adcasting pro blems, o r w ere even remo ved fro m the air. These statio ns have traditio nally helped to lend a seaso ned quality, and add pluralism, to the co verage o f public issues in Ukraine. The state representatives attributed each case to internal pro blems o r legal vio latio ns by the media o utlets in questio n. But in this electio n year, their remo val is a serio us lo ss to media pluralism in the co untry. The largest loss w as suffered by Radio Free Europe/Radio Liberty (RFE/RL): it w as rem oved from the nationw ide FM netw ork of Radio Dovira by its new m anagem ent. BBC, Voice of America, Deutsche Welle, and Radio Polonia w ere also taken off the air w ithin w eeks after their ow n retransm itter, Radio 206

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Kontynent, decided to take over the retransm ission of the abandoned RFE/RL. Radio Kontynent w as totally closed dow n by the authorities, citing licence violations. RFE/RL w as rebroadcast nationw ide in Ukraine (in 11 cities) for five years through Radio Dovira on an FM frequency. How ever, after the station w as sold in January this year to Ukrainian Media Holding (Address: 104, Frunze st., 04080, Kyiv, Ukraine; tel: +380 (44) 205-4300; Boris Lozhkin, President & CEO ; Valentin Reznichenko, Vice President) the ow ners installed new m anagem ent w ho decided to change the form at of the station and cancel future rebroadcasting of RFE/RL program m es. They inform ed RFE/RL of their intention (letter from 11 February 2004 addressed to the Director of the Ukrainian RFE/RL Service, O lexander Narodetsky and signed by V. Reznichenko. This O ffice has a copy of the letter. Mr. Reznichenko did not return calls.) RFE/RL w ent off the air on 17 February. Mr. Narodetsky inform ed this O ffice (contacted in May) that he tried to get hold of som eone at the m anagem ent level at Radio Dovira so as to receive a further explanation but w as unable to do so. Although several interlocutors argued that Radio Dovira based its decision on econom ic reasons, Mr. Narodetsky disagrees. “We w ould have found com m on ground if this w as strictly an econom ic dispute,” he told this O ffice. Nevertheless, RFE/RL m ade an agreem ent w ith Radio Kontynent, a Kyiv-based radio station, that it w ould as of 1 March rebroadcast RFE/RL program m es. “I m ade a deal w ith Sergei Sholokh [ow ner of Radio Kontynent] w hen I w as in Kyiv. Although he said he w as under pressure, threatened, he w ent along,” said Mr. Narodetsky. RFE/RL program m ing w ent on air on 1 March 2004 and tw o days later Radio Kontynent w as raided, its equipm ent confiscated. According to Mr. Narodetsky, since then RFE/RL has not been able to find a partner w ho w ould rebroadcast their program m es. “I had som e talks w ith radio ow ners in Lviv, but they told m e that they w ere threatened that their licences w ould be w ithdraw n if they put RFE/RL on air,” said Mr. Narodetsky. The raid on Radio Kontynent led to several critical statem ents by the NGO com m unity and som e governm ents, especially in light of the fact that Radio Kontynent had been rebroadcasting foreign stations for several years. According to the National Television and Broadcasting Council (O pen letter of 5 March 2004 to US Secretary of State Colin Pow ell and Chairm an of the Federal Com m unications Com m ission Michael K. Pow ell from Borys Kholod, Chairm an of the Council, w hose tenure REPO RTS AND STATEMENTS

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expires on 9 June 2004), Radio Kontynent w as taken off the air for the follow ing reasons: In the early 1990s, according to Mr. Kholod, one of the first com panies to get a 12-hour broadcasting licence on channel 100.9 MHz (Kyiv) for the duration of five years w as a com pany called Media-centre Ltd, the ow ner of Radio Kontynent. Later, it applied for an extension of broadcasting tim e to 24 hours, w as granted the right but did not in the end pay the required fee. Chairm an Kholod states in his letter: “this violation of Ukrainian legislation requirem ents w as ignored by Radio Kontynent and it began to broadcast 24 hours a day illegally. In view of [the] ending of [the] 5-year term of licence of Radio Kontynent on Decem ber 23, 2000 the National Council announced [an] open contest for 100.9 MHz frequency.” [N.B. English as in the original.] Media-centre Ltd took part in the tender but lost. How ever, according to Mr. Kholod, Radio Kontynent continued to broadcast on the sam e frequency illegally. He also stated that the radio station did not repay a loan taken out in 1996. For these reasons the plug w as finally pulled on Radio Kontynent. The ow ner of Radio Kontynent Sergei Sholokh, an intim ate participant in the so-called Gongadze case (see further dow n) told this O ffice back in 2001 w hen his station w as under a relicensing procedure, that he believed that Radio Kontynent w as targeted because of his statem ents related to Gongadze and because of the rebroadcasting of foreign radio stations. Mr. Sholokh fled the country in March 2004 after he alleged that he w as being threatened. He first m ade such allegations to this O ffice back in 2001 (interview s held w ith him in 2001-2002). Ivan Chizsh, Chairm an of the State Broadcasting Com m ittee, described RFE/RL as “biased” and acknow ledged that he had refused to take part in its program m es. In his view, the w hole Radio Kontynent saga w as a “com m ercial conflict”. Nevertheless, he accused foreign broadcasters of “occupying the inform ation territory of Ukraine” w ithout any reciprocity. In a letter addressed to Rada Speaker Volodym yr Lytvyn on 22 April 2004, Chizsh described the, in his view disproportionate, presence of foreign broadcasters as a “real threat to the inform ation security of our country.” (This O ffice has obtained a copy of the letter). Selective action, m ostly directed at independent m edia, w hile perhaps not unlaw ful in itself, w ould violate standards for evaluating freedom of the m edia. Whatever “com m ercial” or “bureaucratic” 208

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reasons are cited for taking RFE/RL off the air and for the closure of Radio Kontynent w hich had rebroadcast m any independent foreign stations, the fact that all this w as done during an election year, w hen a m ultiplicity of view s and their open debate are essential for a dem ocracy, m akes one question if the supervising authorities w ere really interested in pluralism in the m edia. These cases, just like the ow nership structure of the television scene, or the licensing procedure, should be dealt w ith by the relevant authorities in the spirit of a proactive concern for m edia pluralism . If m edia pluralism becom es a real concern for them , then the legal solution to providing pluralism in all respects could be found just as easily as the excuse is offered today of “letting the regulations do their w ork”, that is, to the detrim ent of pluralism .

Silski Visti – An Overly Harsh Measure against a New spaper The case of Silski Visti show s that the judicial system of Ukraine is not yet im bued w ith the spirit of proactively safeguarding freedom of expression. This m ass-circulation paper w as ordered to close dow n by a low -level court before anything had been proven against the paper. But under dem ocratic standards of freedom of the press, even if crim inal instigation of hatred w ere proven, the total closure of a new spaper should not figure am ong possible punishm ents. Silski Visti, a nationw ide new spaper affiliated w ith the opposition Socialist Party and popular in rural areas, has a circulation of 500,000. Early this year a legal case w as brought against it by the AntiFascism Com m ittee because of tw o, page-length book excerpts, by an outside author, Vasil’ Yerem enko, published in the new spaper in 2002-2003. The tw o excerpts discussed the history of Ukraine in the light of alleged Jew ish conspiracies. For the record, the Representative has read the tw o excerpts in question, and his ow n – cultural, not legal – assessm ent is that these pieces are grossly anti-Sem itic. But it is up to the court to decide if their content w as crim inal. And even if it w ere, and a conviction w ere officially punishable w ith total closure of the new spaper, w hat w e are discussing here are the im plications of such overly harsh judicial m oves for the general legal security of Ukraine’s press freedom . O n 28 January, the Kyiv Shevchenkivksy district court ordered the closure of the new spaper. Silski Visti is still being published only because of a pending appeal to the Kyiv Appellate Court. REPO RTS AND STATEMENTS

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This O ffice has spoken to senior editors at Silski Visti as w ell as w ith other experts w ell versed in this case. As this O ffice understands the m erits of the case, the closure of the new spaper could only take place after a crim inal action (anti-Sem itism ) w as proven in a court of law, that this action could lead to incitem ent, and that the new spaper had been used as a tool for such crim inal action. O nly if these facts w ere proven in crim inal proceedings, could the court take action against the new spaper. According to law yers from the reputable NGO , IREX ProMedia, and the Institute of Mass Inform ation, the procedure under w hich the decision w as m ade to close dow n Silski Visti had actually been unlaw ful. In addition, IREX ProMedia argues that the organization that filed the case had no right to do so because their rights as a legal entity w ere not violated. The appeal is still pending and according to legal experts from the Institute of Mass Inform ation the higher court is expected to invalidate the decision of the low er court. O n the other hand, the abrupt closure of a w hole new spaper, especially a publication w ith one of the highest circulations in the nation, is an overly harsh m easure in itself. Its m ere existence in the legal codex has an overall intim idating effect on all editors. In fact, such harshness could block the free debate of public issues and the scrutiny of the Governm ent, especially sensitive in an election year. The harshness of this action is as harm ful to press freedom as the im prisonm ent of journalists for libel used to be before Ukraine decrim inalized libel. Ukraine’s judicial system needs to rid itself of all harsh sanctions available to the Governm ent, the prosecution, or the courts, to rem ove their “chilling” punitive effect on freedom of expression. Closure of one of the m ost im portant dailies, even for an offence com m itted against m inorities, is certainly one of those sanctions that should be abandoned.

The Go ngadze Case – Still Unreso lved The m urder of the journalist Georgiy Gongadze has still not been resolved. This rem ains a serious source of m istrust in the rule of law and the security of journalists. The previous Representative has dealt w ith the Gongadze case since the beginning. The initial disappearance and subsequent m urder of Ukrainian journalist, Georgiy Gongadze, has received substantial publicity around the w orld. Num erous experts, both dom estic and international, have been involved in trying to solve this case. 210

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How ever, although Prosecutors-General have changed three tim es since Gongadze w as killed, there is still no light at the end of the tunnel. The Representative expects the relevant authorities to continue to vigilantly pursue this case and hopes that in the end those w ho have m urdered Gongadze w ill be brought to justice.

Reco mmendatio ns • The broadcasting m edia is heavily tilted tow ards the Governm ent, often providing airtim e only for one view out of several prevalent in the country. This situation could be resolved quite quickly w ith respect to all its three m ain com ponents (ow nership, coverage, and licensing) if the political w ill to do so w ere present on the part of the Adm inistration, the Rada m ajority, and the licensing authorities. In the short term , m uch depends on the broadcasters them selves. There is the possibility to enhance pluralism , objectivity and balance; to offer m ore airtim e to events and view s that are not in line w ith the Governm ent or the Rada m ajority. • The practice of sending out the so-called temniki, basically coverage guidelines for editors, should be abolished and replaced by a transparent public relations strategy w ith clearly defined goals and objectives. In their current form , temniki only rem ind journalists and the public alike of instructions that used to be issued by the Com m unist authorities to the m edia. Thus they reinforce an old fear that coverage of public issues in the press, and as a consequence, public opinion itself, are the products of a governm entsponsored conspiracy. • A unified licensing procedure should be established. It should be both m ore flexible and transparent, and should concentrate the responsibilities under one body, for exam ple, the National Council. (It should certainly be a body that is established w ith guarantees of political independence and plurality.) O nly w ith the help of a clear structure of responsibility/accountability in licensing could the Governm ent and the legislation fulfil its obligation to take a proactive approach tow ards all-dim ensional m edia plurality, w hich is one of the m ost im portant aspects of m edia freedom . • The closure of RFE/RL and other foreign stations rebroadcasting in Ukraine and the raid against Radio Kontynent are cases w hich, just like the ow nership structure of the television scene or the licensing procedure, should be dealt w ith by the relevant authorities in the REPO RTS AND STATEMENTS

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spirit of a proactive concern for m edia pluralism . If this becam e their concern, then the legal solutions to providing full pluralism could be found just as easily as the excuse is offered today of “letting the regulations do their w ork”, that is, at the detrim ent of pluralism . • Ukraine’s judicial system needs to rid itself of all harsh sanctions available to the Governm ent, the prosecution, or the courts, to rem ove their “chilling” punitive effect on freedom of expression. Closure of one of the m ost im portant dailies like Silski Visti, even for an offence com m itted against m inorities, is certainly one of those sanctions that should be abandoned. • The Gongadze case, often raised in O SCE fora, is still under investigation. The authorities are encouraged to continue to pursue it until the perpetrators are finally brought to justice.

<http://www.osce.org/documents/rfm/2004/06/3081_en.pdf>

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Statement o n Belarus at the Permanent Co uncil o f 9 September 2004 (Under Current Issues)

As I have stated in m y previous report to the Perm anent Council, I w as planning to m ake an assessm ent visit to Belarus regarding the m edia situation. O n that subject, I w ill share som e inform ation w ith you in m y regular report to this forum . How ever, m y report w ill not contain the view s of the Governm ent of Belarus because I w as not able to go to Belarus. I w ould like to set the record straight, and brief you on the unprecedented circum stances surrounding m y failed trip to Belarus. In July, I inform ed both the Foreign Minister of Belarus and Am bassador Gaisenak of m y intention to visit Belarus in order to hear the view s of the Governm ent. Throughout July and August, I successfully discussed all the details w ith both the Delegation in Vienna and the Foreign Ministry in Minsk. O n 17 August, I w as even provided w ith a detailed draft program m e by Am bassador Gaisenak. The Belarus authorities asked m e to change the dates of m y trip so that I could address a m edia-related training sem inar organized in conjunction w ith the O SCE O ffice in Minsk. I did com ply w ith this request. We changed the dates. Then, the Belarus authorities decided to change the structure of this sem inar by m erging it w ith a m eeting I planned to organize w ith independent journalists. They asked if I w ould agree to this change. I did agree and the tw o events w ere m erged. O nce again, I w as asked to shorten the duration of m y m eeting w ith the independent m edia. I agreed and com plied w ith this request as w ell. Then the very sem inar, w hich w as the reason w hy w e had previously changed the date of our visit w as altogether cancelled, and I w as asked if I w ould still be interested in com ing to Belarus. I said: â&#x20AC;&#x153;O f course I am .â&#x20AC;? Throughout this entire process, the Perm anent Delegation of the Republic of Belarus to the O SCE fully co-operated w ith m y O ffice. The Delegation inform ed m e that the itinerary to w hich w e had m utually agreed needed a final O K from Minsk. REPO RTS AND STATEMENTS

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I w as supposed to leave for Belarus yesterday. I had officially requested an entry visa, w hich I never received because there had been no instruction from Minsk. Up to date, I still have not received a final O K from the Minsk authorities. Neither have I received any kind of answ er. Tuesday night I had to cancel m y plane tickets for the trip.

<http://www.osce.org/documents/rfm/2004/09/3485_en.pdf>

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Regular Repo rt to the Permanent Co uncil o f 16 September 2004

This is m y second quarterly report since I took office in March. I w ould like to start by focusing on current successes and setbacks of som e of our long-term strategies. Libel I am continuing the w ork started by m y predecessor on libel: for several years now this O ffice has been actively lobbying for its decrim inalization. Already, as of today, five O SCE participating States have abolished libel as a crim inal offence, and turned to its civil-law based handling: USA (although 17 states w ithin this country still retain their crim inal libel provisions), Moldova, Ukraine, Bosnia and Herzegovina, and Georgia. Also, on 1 July, President Robert Kocharian signed am endm ents to the Crim inal Code partially decrim inalizing libel in Arm enia. In a letter to Foreign Minister Vardan Askanyan, I w elcom ed this as a step in the right direction. At the sam e tim e, libel rem ains a crim inal offence and the existing provisions still offer m ore protection for public officials than ordinary citizens. O n 15 O ctober 2004, the Parliam ent in Slovakia w ill have a debate on a new Crim inal Code. To m y know ledge, under the current proposal subm itted by the Ministry of Justice, articles 331 and 384 w ould retain crim inal penalties for defam ation or slander that exist in the current penal code as articles 154, 156 and 206. In a letter to Deputy Prim e Minister and Minister for Justice Daniel Lipsic, I urged him to reconsider his original proposal. Both Arm enia and Slovakia should not m iss this opportunity for reform and should join those countries that have decrim inalized libel and have set a good exam ple to be follow ed by other O SCE participating States. Unfortunately, in June the Kyrgyz Parliam ent rejected for the third tim e in seven years an initiative by President Akayev to decrim inalize libel. Here are some recent libel cases that I have raised. In Hungary, an appeals court in early July suspended a ten-month prison sentence against editor Andras Bencsik for tw o years. An eight-month suspended REPO RTS AND STATEMENTS

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prison sentence against journalist Laszlo Attila Bertok w as upheld. The case w as brought by MP Im re Mecs after Demokrata, the w eekly that Bencsik edits, alleged that testim ony by Im re Mecs had played a role in the sentencing of four people to death after the 1956 revolution. In Poland, the Warsaw Suprem e Court upheld a three-m onth prison sentence against Andrzej Marek, editor-in-chief of the w eekly Wiesci Polickie (Police New s), for libelling a local official. In another case in May 2004, Beata Korzeniew ska, a journalist for the daily Gazeta Pomorska, received a suspended one-m onth prison sentence for libelling a judge from the city of Torun. In Azerbaijan, w e w ere follow ing the crim inal libel case against Irada Huseynova, a journalist w ith Bakinski Bulvar. I w as pleased to hear that on 24 June 2004, the Nizam i District Court dropped the charges against her and closed the case. How ever, the case of Huseynova rem ains an exception to the rule and libel law suits against journalists are unfortunately still a regular occurrence in Azerbaijan. We w ere just inform ed that the editor-in-chief of Baki-Khabar, Mr. Aydin Q uliyev, w as sentenced to one year suspended im prisonm ent for reprinting an article from another new spaper. This case is particularly alarm ing since the sam e journalist w as physically assaulted in July as is m entioned later in this report. We also heard that Elm ar Huseynov, the editor of the w eekly M onitor is facing a trial in a libel suit filed by a Mem ber of the Parliam ent from the ruling party. Not only incarceration for libel can cause dam age to the general state of m edia freedom . O n 16 July 2004, in a suit brought by the Presidential Adm inistration for libel, an Alm aty district court in Kazakhstan ordered the w eekly new spaper Assandi-Times to publish a retraction as w ell as to pay 50 m illion tenge in m oral dam ages. That sentence practically annihilated the new spaper, an im portant independent voice in the country. Nothing could be a clearer proof that crim inal libel in all its form s is having a general chilling effect on press freedom . In som e of these cases, I do not question the independence of the judiciary and its adherence to the law of the country. How ever, even if libel is a crim inal offence, I urge the countries, as a first step, to “deprisonize” it, or as Arm enian Am bassador Jivan Tabibian has once suggested, to “de-incarcerate” it. These ancient libel law s are inadequate, even detrim ental, to a m odern dem ocracy w here freedom of the press and uninhibited discussion of public issues could be dim inished by the effect of a crim inal libel sentence used against journalists for their w ork. 216

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It is often the case that a journalist is sued for libel by a public official w ho is criticized, m aybe even unjustly, in his or her official capacity. Let m e give you tw o quotes here: “A rule com pelling the critic of official conduct to guarantee the truth of all his factual assertions – and to do so on pain of libel judgm ents virtually unlim ited in am ount – leads to a com parable ‘self-censorship’. Allow ance of the defence of truth, w ith the burden of proving it on the defendant, does not m ean that only false speech w ill be deterred. Even courts accepting this defence as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel w as true in all its factual particulars. […] Under such a rule, w ould-be critics of official conduct m ay be deterred from voicing their criticism , even though it is believed to be true and even though it is, in fact, true, because of doubt w hether it can be proved in court or fear of the expense of having to do so.” This is from the opinion of the US Suprem e Court in the case N ew York Times Co. v. Sullivan, 376 U.S. 254 (1964). Another quote is from a judgm ent by the European Court of Hum an Rights in the case of O berschlick v. Austria that w as adopted on 25 April 1991: “The lim its of acceptable criticism are accordingly w ider w ith regard to a politician acting in his public capacity than in relation to a private individual. The form er inevitably and know ingly lays him self open to close scrutiny of his every w ord and deed by both journalists and the public at large, and he m ust display a greater degree of tolerance, especially w hen he him self m akes public statem ents that are susceptible of criticism .” These tw o exam ples show that there is w ide understanding of the need to provide journalists w ith a certain privilege w hen discussing issues of public im portance. As w ith the protection of sources, journalists should also not be open to crim inal prosecution or frivolous law suits even w hen the inform ation that they dissem inate m ight be false or derogatory. Weighed against the potential “chilling” effect, this privilege, if often questioned, should not be allow ed to erode. Som e of the countries w e approach about crim inal libel refer to the older dem ocracies of Europe. In these cases, w e point to the fact that m ost of these countries do not use these ancient law s against journalists. Why don’t w e go a step further, for the benefit of the w hole O SCE region? Where crim inal libel law s have not been utilized for decades, I see no reason w hy they should not be taken off the books. I urge all countries to do so.

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In general, I foresee for m y O ffice several possible lobbying strategies regarding libel: • Encourage parliam entarians to table proposals to repeal crim inal libel legislation; • Encourage governm ent officials through public inform ation cam paigns to refrain from using existing crim inal law s to sue the m edia and journalists; • Encourage judicial bodies, w here crim inal libel does exist, to install a m oratorium on issuing prison term s, even suspended ones, until the necessary reform ; My O ffice is currently in the process of developing a database m atrix on libel legislation in the O SCE region. This m atrix w ill also be accom panied by a legal analysis that w ill explain our findings, and help define the best w ays to resolve the problem . I hope to present the m atrix early next year. My O ffice is also currently review ing libel legislation in Albania and Azerbaijan for its com pliance w ith international standards, and w e are planning a round table on this topic in Baku in O ctober. Russian Federatio n Last w eek, I raised three cases w ith the Russian Governm ent: the cases of Andrei Babitsky and Anna Politkovskaya and the detained film crew from Georgian TV channel Rustavi 2. I look forw ard to receiving additional inform ation. Also, I have com m issioned a report on how the m edia covered the tragic events in Beslan. The report is attached (it provides additional inform ation on the cases m entioned above). The coverage of the events has proven that m edia freedom had taken hold in Russia. How ever, several w orrying developm ents in the relationship betw een the Governm ent and the m edia drew the attention of local and international experts and hum an rights activists. Cases of detention and harassm ent of journalists occurred, seriously im peding their w ork. Even m ore im portantly, the Governm ent did not provide in a tim ely m anner truthful inform ation on the handling of the crisis: • How m any people w ere taken hostage; • What w as the num ber of hostage takers; • Who w ere they; • What w ere their dem ands. 218

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As a result, journalists w ere physically attacked in Beslan for allegedly m isinform ing the public. A triple credibility gap arose betw een the Governm ent and the m edia, betw een the m edia and the citizens, and betw een the Governm ent and the people. This is a serious draw back for a dem ocracy. The m ain sources of inform ation for the Russian people are the three nationw ide broadcasters. Unfortunately, they did not provide accurate and up-to-date inform ation. In the end, the print m edia and Internet new s sites stepped in, filling the inform ation void as m uch as they could. Belarus Let m e start by saying that as recently as the last tw o w eeks several new spapers in Belarus w ere closed. This fact is unprecedented in the O SCE fam ily of dem ocracies, and is only one am ong the m any signs of the m enaces for press freedom s in Belarus. In m y previous Q uarterly Report of 8 June 2004, I announced to the Perm anent Council that I w as looking into options on how to proceed w ith regard to the situation of freedom of the m edia in the Republic of Belarus. I decided to visit Belarus and m ake an independent and objective assessm ent of the situation. The purpose of m y visit w ould have been to raise points of concern, and, by engaging in constructive dialogue, assess the Governm entâ&#x20AC;&#x2122;s attitude to the independent m edia and freedom of expression. I also hoped that, as a result of m y visit, I could m ake practical and future-oriented recom m endations in order to assist the country in adhering to its O SCE com m itm ents. Unfortunately, I w as not able to visit Belarus, due to the circum stances explained in m y statem ent to you last w eek. I thank Am bassador Gaisenak and the authorities in Minsk for the apology last Thursday and for the invitation that finally arrived last Friday. I hope that I w ill visit Belarus in the future at a tim e appropriate for both, m y O ffice and the authorities, and that I w ill then be able to report to you from inside Belarus. Here I can only sum m arize the inform ation w e receive from m any w ell-know n and respected m edia observers. The m edia situation has system atically deteriorated in Belarus. Currently, the follow ing w orrisom e trends are observed: â&#x20AC;˘ Coercive adm inistrative m easures taken against journalists, including deportation for alleged biased reporting of political events;

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• Suspension and closure of independent m edia outlets; • Denial of access to state-ow ned printing facilities for independent new spapers; • Selective application of other econom ic m eans of control and lim itation; • Restrictive and arbitrary application of the Media Law against independent new spapers that are critical of the Governm ent; • Adoption of new legislation that increases the adm inistrative licensing requirem ents for distribution of independent inform ation; • Application of libel and insult law s to silence critical voices in the non-state m edia, backed up by articles in the Crim inal and Adm inistrative codes; • High level of state control over the electronic m edia; only the stateow ned broadcasting com pany holds licences for nationw ide channels; • The four state-controlled nationw ide TV channels are used for propaganda against the opposition, w hich, on the other hand, is denied the right to reply; • Significant restrictions on access to independent inform ation outside the capital. In an attachm ent to m y report you w ill find a detailed list of reported cases of violation of m edia freedom com m itm ents. That list only contains the facts from the beginning of this year, but even so it is too long to be read aloud in any detail. Ko so vo As a follow -up to our report on The Role of the M edia in the M arch 2004 Events in Kosovo, I am dispatching to Kosovo a Special Representative for a lim ited duration w ho, in close co-operation w ith O MIK and the Tem porary Media Com m issioner, w ill focus on observing and encouraging the im plem entation of our recom m endations presented here in April 2004. The funding for the Special Representative, Mr. Dardan Gashi, has been generously provided by the United Kingdom and by O MIK. The Special Representative w ill also follow a series of freedom of expression issues that have not been addressed adequately so far. In close co-operation w ith the donor com m unity, the Representative w ill try to develop a m ore focused dispersion of funds for the local m edia. 220

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Internet The 2004 Am sterdam Internet Conference took place on 27-28 August. To m eet the needs of O SCE participating States, the conference agenda w as developed at an earlier sem inar in Vienna. During this sem inar, it becam e clear that the O SCE is taking the lead on Internet issues w here a discussion on constitutional and social values is needed, and that our conference could further strengthen the O SCE’s unique position in the field of hum an rights. In Paris during the O SCE M eeting on the Relationship between Racist, Xenophobic and anti-Semitic Propaganda on the Internet and Hate Crimes, as w ell as in Brussels, m y O ffice organized tw o side-events on guaranteeing m edia freedom on the Internet. The tw o-day conference in Am sterdam brought together over 80 international experts and 25 speakers from the O SCE, the Council of Europe, UNESCO , academ ia, m edia and a num ber of non-governm ental organizations from Europe, the Caucasus, Central Asia and North Am erica. Topics included legislation and jurisdiction for digital netw orks; hate speech on the Internet; education and the developm ent of Internet literacy; access to inform ation and netw orks as w ell as the problem s of self-regulation, blocking and filtering. The participants’ presentations can also be found on the conference w ebsite. Results from the conference discussions and the recom m endations delivered by the participants w ill be incorporated in a M edia Freedom Internet Cookbook to be published later this year by the Media Representative. In the tradition of other “Internet Cookbooks” – such as those on softw are and program m ing – this publication w ill serve as a collection of best practices on a broad range of Internet issues and aim s to provide valuable guidelines for O SCE participating States. During the conference, the participants stressed that regulation m ust be lim ited to fields w here it is absolutely inevitable. Actions taken tow ards the regulation of the Internet, even w ith the best of intentions, can cause potentially disastrous collateral dam ages for the freedom of the various types of m edia that the Internet hosts. Additio nal Cases D ealt w ith by my O ffice I have publicly protested the killing of Paul Khlebnikov in Russia; the abduction and subsequent m urder of Italian journalist Enzo Baldoni in Iraq; and the kidnapping of the tw o French journalists, also in Iraq. In Italy, I raised the issue of the 16 August police raid on the offices of the Milan w eekly Gente and the Rom e hom e of journalist Gennaro De Stefano. The police, as I understand it, w ere acting on the REPO RTS AND STATEMENTS

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orders of the Genoa prosecutor and w ere looking for docum ents relevant to an enquiry into street clashes during the July 2001 G-8 sum m it in Genoa. Material w as seized from the offices of Gente, w hich w as planning to publish the results of its investigation into this m atter. The w eeklyâ&#x20AC;&#x2122;s editor, Um berto Brindani, and reporter De Stefano w ere told during the searches that their nam es w ere on a list of people being investigated for alleged illegal possession of docum ents. I have asked the Italian authorities for clarifications and I am thankful for their answ er I received yesterday w hich I am currently studying. In Azerbaijan, in my letter to Foreign Minister Elmar Mammadyarov of 28 July 2004 I expressed my concern regarding reported acts of violence against tw o journalists, Mr. Aydin Q uliyev, the editor-in-chief of Baki-Khabar, and Mr. Eynulla Fatullayev, a journalist w ith the magazine M onitor. I have just received an answ er from Mr. M. MammadGuliyev, the Deputy Minister of Foreign Affairs, for w hich I am very thankful. According to the details included in this letter, the Q uliyev case w as dismissed. The investigation in the other case is ongoing. I am also follow ing the protests in Mo ldo va by the journalists from the national broadcaster Teleradio Moldova (TRM ) that started this sum m er. The protesters are dem anding m ajor changes at TRM . Dem onstrations started on 27 July, w hen the journalists w ent on strike to protest unfair procedures of selection of staff at the new public broadcaster follow ing the adoption of a law last year. Since 22 August, five persons have been on a hunger strike protesting continued political control over TRM . I am also concerned w ith the arrest of cam eram an Dinu Mija on 6 Septem ber by police in Tighina in the self-proclaim ed Transdniestrian republic and his sentencing to 15 days in prison. I w elcom e his release on 13 Septem ber. I am planning to visit Moldova in the second half of O ctober to take a closer look at the media situation in this O SCE participating State. I am also closely follow ing the situation w ith the deteriorating m edia situation in Tajikistan. I w ill raise m y concerns w ith the authorities during m y trip to Dushanbe for the Sixth Central Asian Media Conference next w eek. And, finally, I w ould like to w elcom e Mr. Roland Bless and Mr. Alexander Boldyrev w ho w ill join m y O ffice as Senior Advisers in the very near future. <http://www.osce.org/documents/rfm/2004/09/3588_en.pdf>

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Repo rt o n Russian Media Co verage o f the Beslan Tragedy: Access to Info rmatio n and Jo urnalists’ Wo rking Co nditio ns 16 Septem ber 2004 The research for the report was conducted by the Centre for Journalism in Extreme Situations of the Russian Union of Journalists

Summary The coverage of the events has proven that m edia freedom had taken hold in Russia. How ever, several w orrisom e developm ents in the relationship betw een the Governm ent and the m edia drew the attention of local and international experts and hum an rights activists. Cases o f detentio n and harassment o f jo urnalists o ccurred, serio usly impeding their w o rk. Even mo re impo rtantly, the Go vernment did no t pro vide in a timely manner truthful info rmatio n o n the handling o f the crisis: • How m any people w ere taken hostage; • What w as the num ber of hostage takers; • Who w ere they; • What w ere their dem ands. As a result, journalists w ere physically attacked in Beslan for allegedly m isinform ing the public. A triple credibility gap arose, betw een the Governm ent and the m edia, betw een the m edia and the citizens, and betw een the Governm ent and the people. This is a serious draw back for a dem ocracy. The m ain sources of inform ation for the Russian people are the three nationw ide broadcasters. Unfortunately, they did not provide accurate and up-to-date inform ation. In the end, the print m edia and Internet new s sites stepped in, filling the inform ation void as m uch as they could.

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Histo ry o f Events O n 1 Septem ber around 9:30 local tim e, a GAZ-66 car usually used by the m ilitary pulled up in the yard of school #1 in Beslan (Republic of South O ssetia-Alania). Arm ed people in cam ouflage uniform s and face m asks got out of the car. With autom atic guns, they shot in the air several tim es and announced that they w ere going to take everyone present hostage, all of w hom w ere at that tim e attending the school year opening cerem ony. The largest death toll w as registered on 3 Septem ber during the release of the school, w hen, at approxim ately 13:05 local tim e, there w ere tw o explosions in the school area. New s agencies reported that at 12:45 the crisis centre m anaged to agree w ith the terrorists about evacuation of the bodies of people w ho had been killed during the capture of the school. At 13:05, officers of the Ministry for Em ergency Situations entered the school to evacuate the bodies. At that m om ent, there w as an explosion and som e hostages started to escape from the school. The terrorists started shooting at them . At 13:15, units of the special force w ere sent to the school to help the hostages. O nly at 16:00 did security forces gain control over the w hole building. In the school gym , m ore than 100 dead bodies from hostages w ere found. The Chief of the North O ssetian Federal Security Service (FSB) office, Valeriy Andreev, said that “No operation w ith the use of force w as planned. The special forces started the operation in response to the shooting of the hostages by the terrorists”.

Insufficient, Co ntradicto ry, o r Inco rrect Info rmatio n fro m the Go vernment First, there w ere reports stating that ten of the terrorists resem bled native Arabs and one resem bled a native African. Later, official sources reported that the m an resem bling a native African actually proved to be a Chechen. According to the General Prosecutor of Russia, Vladim ir Ustinov, the latest inform ation on the num ber of terrorists as of 8 Septem ber w as that there w ere “about 30 people, including tw o w om en”. A day earlier, Sergey Fridinskiy, the Deputy General Prosecutor, had announced a m ore definite num ber of 32 people. During his m eeting w ith President Vladim ir Putin, Vladim ir Ustinov announced that only one m ilitant, Nur-Pashi Kulaev, w as captured alive. How ever, according to Izvestia’s report, four m ilitants w ere captured, including one w om an. 224

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Also, so far no representative of the authorities has been able to intelligibly explain the identity of the terrorist group that seized the school in Beslan. In the beginning, official reports said that the terrorists arrived in Chechnya through Ingushetia. Subsequently the nam e of the field com m ander, an ethnic Ingush w ho w as nicknam ed Magas, w as reported in connection w ith the hostages at the school. Several tim es in the past, authorities have reported that he w as killed, including after the attack on the Republic of Ingushetia in June 2004. President Putin and General Prosecutor Ustinov are com m unicating that Sham il Basayev and Aslan Maskhadov organized the terrorist act although they have not given any evidence. The num ber of people w ho w ere held hostage is also unknow n. The latest data â&#x20AC;&#x201C;1,200 people â&#x20AC;&#x201C; w as delivered by Vladim ir Ustinov, although a day earlier it had been reported that 1,181 people had been taken hostage. According to Ustinov, as a result of the terrorist attack, 326 people died, although the num ber of 335 w as previously reported for several days. New s agencies reported that parents w ere not allow ed to visit hospitals w here their children w ere treated, and doctors w ere not allow ed to use their m obile phones either.

Wo rking Co nditio ns o f Russian Jo urnalists in Beslan Tw o journalists, Svetlana Pelieva and Bella Dzeestelova, and new s photographer, Fatim a Malikova, w ho w ork for the Beslan paper Z hizn Pravoberezhya happened to be am ong the hostages. They had com e to the school in the m orning of 1 Septem ber to prepare a report about the Day of Know ledge (1 Septem ber) and w ere taken hostage as w ell. All of these journalists survived. According to m ost of the journalists w ho w ere w orking in Beslan from 1 Septem ber until the release of the hostages at m idday on 3 Septem ber, the authorities did not obstruct the w ork of m ost reporters during this tim e period. Most of the problem s that journalists faced cam e from local residents w ho began to treat the press aggressively after Russian state TV channels only reported official inform ation about the num ber of hostages. The num ber of 354 people w as persistently given, as initially stated by Lev Dzugaev, the press secretary of the President of North O ssetia and Valeriy Andreev, the chief of the local FSB office. O nly after the parents of the children w ho w ere held hostage announced that they w ould start m aking their ow n lists did North REPO RTS AND STATEMENTS

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O ssetian President, Alexander Dzasohov, say that there w ere over 900 hostages in the school. Local FSB chief, Valeriy Andreev, said in the m orning of 3 Septem ber that “journalists and locals provoke periodic shooting by terrorists because they w ant to be in the m idst of things”. O n the second day of the school siege, 2 Septem ber, the press secretary of the North O ssetian President, Lev Dzugaev, and the Minister of Interior of North O ssetia, Kazbek Dzantiev, held a briefing w here they asked journalists reporting from Beslan “not to report inform ation of unfolding events to their editorial offices for som e tim e or to co-ordinate their m aterials w ith the crisis centre for release of the hostages”. According to journalists’ rem arks, this happened after the Russian m edia reported that the real num ber of people held by the terrorists differed greatly from the official data. They w ere referring to the evidence given by one of the first group of hostages to be released in the afternoon on 2 Septem ber. The correspondent from the new spaper Gazeta ran an article on 3 Septem ber stating that ever since 1 Septem ber, the staff of the press services of all security services involved in the release operation – that is: the Ministry of the Interior, FSB and the General Prosecutor’s O ffice – had been sent to Beslan. These representatives w ere alw ays present at the crisis centre. Their task should have been to provide the m edia w ith inform ation and arrange m eetings betw een journalists and the chiefs of the release operation. Not only did they not cope w ith these tasks, they never even started to carry them out, according to correspondents from Gazeta w orking in Beslan. “It seem s as if there are no representatives of the law enforcem ent agencies here at all,” the correspondents said. “O nly one m an from the local FSB office cam e out to talk to journalists and said that a crim inal case had been launched.” Many journalists noted that local m ilitia representatives w ere m ore w illing to com m unicate: they answ ered reporters’ questions, presum ably hoping that the journalists could help release the hostages, m any of w hich w ere relatives of the m ilitiam en. O n 2 Septem ber, the Industrial Com m ittee, an organization that incorporates top m anagers of 24 m edia outlets, m ost of w hich are reported to be close to the Governm ent, circulated an address to the Russian press. It rem inded them that after the siege of the theatre in Moscow in O ctober 2002, a so-called “Antiterrorist Convention” had been adopted. Most Russian journalists did not support this convention because they believed it w as a w ay for Russian authorities to try to lim it freedom of speech. 226

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“While elaborating and discussing this docum ent, w e proceeded from our belief that the threat of terrorism should not be used as grounds and justification for im posing lim its w ith regards to freedom of opinion and freedom of the m edia. At the sam e tim e, being aw are of the m easure of responsibility in w orking w ith inform ation in these conditions, w e proposed a range of acceptable restrictions and rules that w e w ould w illingly accept stipulating that in extrem e situations the rescue of people and the hum an right to live are prim ary and take precedence over any other rights and freedom s,” the address of the Com m ittee noted. O n 3 Septem ber, on N TV (a nationw ide TV channel m ajority ow ned by GAZPRO M, a state-controlled gas com pany) a correspondent in a broadcast from Beslan said that there w ere “m any” w ounded and dead at the school, but did not specify. The tw o state channels O RT and Rossiya also did not report the num ber of victim s. The N TV correspondent suggested that the lack of inform ation in the reports w as the result of the antiterrorist self-restrictions that m any m edia had voluntarily adopted after the tragic experience of the theatre siege. Nevertheless, N TV referred to doctors to confirm a Reuters report stating that the num ber of w ounded reached 200. By the end of 3 Septem ber, the Internet new spaper www.gazeta.ru w rote in a com m entary: “The crisis centre applied tactics that can be explained as an inform ation blockade of the terrorists’ dem ands. This seem s alm ost obvious today. The dem ands included one m ajor request, w hich w as im practicable, as w ell as secondary dem ands w hich the terrorists probably also put forw ard.” The hostages told the m edia that the terrorists in the school w ho w ere w atching the new s on TV w ere irritated by the distorted inform ation. Yelena Milashina, a reporter for N ovaya Gazeta, w rote: “A girl (hostage) said that after that persistent and extrem ely im portant new scast (because those lies provoked the terrorists’ aggression), the children w ere no longer given tap w ater.” Local residents w ere also irritated. They accused journalists of incorrectly reporting the events in Beslan. During street m eetings tw o days after the release of the hostages, locals beat up Alexander Kots, the correspondent from Komsomolskaya Pravda. The people w ho attacked him argued that he distorted everything in an article that had been published on Saturday, 4 Septem ber. O n 6 Septem ber, the M oskovskiy Komsomolets new spaper printed the article “Why did you, journalists, lie?” w hich quoted a dialogue REPO RTS AND STATEMENTS

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betw een a correspondent and a resident of Beslan as included in the follow ing extract: “Did you also w rite in your paper that there w ere 300 people there? But there w ere 1,220 of them , do you understand?!” The m an in a black shirt w aves his hand in im potence. “Why did you lie?” The authorities adm itted that there w ere over a thousand hostages in the school only after this figure appeared in the press. TV broadcasters w ere gagged; even Ruslan Aushev, the m an w ho brought the first saved hostages out of the school, w as cut out of reports. In the sam e issue, the new spaper ran a com m entary by the colum nist, Alexander Khinstein, entitled The Chronicle of Lies. From 38 Snipers to 354 Hostages. N TV w as the first TV channel to report about the events that took place in Beslan on 3 Septem ber, the explosions and the release of the hostages. The channel started live broadcast of the events at 13:30, a half hour after the explosions appeared live on television during the new scast. The governm ent channels Perviy Kanal and Rossiya only started live broadcasts from Beslan at 14:00. According to the advisor to the Chair of the All-Russian State Television and Radio Company (VGTRK), Viktoriya Arutyunova, this w as explained by the fact that “We didn’t w ant to show the events unfolding the sam e w ay N TV did: som eone is shooting from som ew here. We w anted to understand w hat w as really happening. We w aited until w e had all the inform ation in order not to create a panic.” According to N ezavisimaya Gazeta, the delay in launching live broadcasts happened because at the sam e tim e that the events in Beslan w ere occurring, the Head of the Presidential Adm inistration, Dm itry Medvedev, w as m eeting w ith the heads of state channels in Krem lin. This w as indirectly confirm ed by Arutyunova in her interview. She called this m eeting the “traditional w eekly Friday m eetings”, an institution questionable in itself, during w hich the line of coverage of events w as form ulated. According to N ezavisimaya Gazeta, the channel Rossiya lim ited coverage to an hour-and-a-half live broadcast then shifted to short new s releases at the beginning of each hour apparently follow ing the exam ple of Perviy Kanal, w hich had adopted this form of coverage from the very beginning. 228

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According to a Rossiya staff m em ber, the channel’s adm inistration circulated guidelines for reports and com m entaries shortly after the capture of the school. For exam ple, state TV channels never m entioned President Vladim ir Putin in their reports from North O ssetia. Ren-TV, a privately ow ned cable channel, reported about the situation in Beslan m ost thoroughly. The channel’s cam eram an, Boris Leonov, actually w ent to storm the building w ith Alfa group soldiers and later told the audience on the phone about w hat he had seen at the request of O lga Rom anova, the anchor of the special new s broadcast 24 chasa.

Cases o f Vio lence, D etentio n, o r Pressure o n Russian Jo urnalists Journalists encountered som e of their m ost serious problem s on 3 Septem ber right after the storm ing of the school began. According to the testim ony of Martin Wojciechow ski, a correspondent from Gazeta Wyborcza, the crew of the Russian TV channel TVTs w as beaten up. Local residents and m en arm ed w ith hunting w eapons suspected that the channel’s cam eram an w as an accom plice of the terrorists and started chasing him . It w as only after m ilitiam en started shooting in the air from autom atic w eapons that the journalists m anaged to escape. Many other journalists w ere attacked in a sim ilar w ay. According to an article by Elena Milashina published in N ovaya Gazeta, a French journalist and a Sw edish cam eram an w ere beaten up. According to other journalists’ testim onies, provocations m ay have served as reasons for som e attacks. This could have been the case, for exam ple, w hen there w ere people in the crow d w ho scream ed that it w as all the fault of journalists and the crow d jum ped on reporters. Ren-TV’s cam eram an, Boris Leonov, said that tapes w ere taken aw ay by m en in civilian clothes. Here is an extract of an interview by M oskovski Komsomolets w ith Boris Leonov: •

No, there is no censorship, but there is a com plete m ess. What does this m ean? Well, they beat three cam eram en then they took aw ay m y cam era and m y tape. They w ere civilians. Nobody know s w ho they are. Which cam eram en w ere beaten? When I w as there, the cam eram an of IPN w as beaten up. It’s good that he w as w earing a bullet-proof jacket. Then they beat a French cam eram an and som eone else. When w e w ere standing by the Eurovision dish they also had a fight w ith locals. REPO RTS AND STATEMENTS

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Why w ere TV crew s beaten?

They said w e w ere lying. They asked: w hy do the representatives of the authorities com e out to the cam eras and announce the w rong num ber of hostages? This is w hy w e becam e w hipping boys. Already on 1 Septem ber, the people w ere saying that there w ere 1,200 hostages, but the authorities announced 354. Foreign journalists w ondered: w hat kind of a num ber is that, 354? Why not 600 or 700? I w as surprised by that too. Also, all foreign correspondents w ere telling their view ers, their people, the w hole truth – they knew the real num ber. This im m ediately m ade local people hostile tow ards us, as if som eone w as doing this on purpose, fom enting people’s anger… Having the O ssetians as enem ies w ould cap it all!

Why w ere the fo reign co rrespo ndents attacked if o urs w ere lying?

That didn’t m ake a difference. The foreigners have Russian cam eram en too.

After the storm ing of the school, m any Russian and foreign TV journalists w ere reported to have been searched. Their tapes w ith the m aterial they had film ed w ere confiscated. According to Margarita Sim onyan, the RTR (or Rossya state channel) reporter, doctor Leonid Roshal, pediatrician, one of the negotiators, ordered, for unknow n reasons, that the tape from the crew of the state channel be confiscated. At the sam e tim e, during and after the storm ing of the school, m any journalists w ere exposed to pressure from the m ilitia and from security services. Elena Milashina said that w hen journalists w ere stopped and asked to show their passports and accreditation cards, unexpectedly to them , the m ilitiam en started asking for certificates of tem porary registration in North O ssetia. Therefore, correspondents from N ovye Izvestia, Anna Gorbatova and O ksana Sem yonova, w ere detained (they w ere kept at the m ilitia station for an hour). Madina Shavlokhova from M oskovskiy Komsomolets and Elena Milashina from N ovaya Gazeta w ere also detained. In the evening of 5 Septem ber, The M oscow Times correspondent Sim on O strovskiy w as detained in a m ilitary village called Sputnik near Vladikavkaz. He w as brought to a m ilitia station in the rightbank district of North O ssetia. 230

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After the storm ing of the school, even the openness of officials w ith regards to giving inform ation changed. Before the rescue operation, they often held briefings, announcing unreliable and altered m essages. After the storm , the chief of the local FSB office, Valeriy Andreev, Deputy General Prosecutor, Sergey Fridinski, and the official from the Presidential Adm inistration, Dm itriy Peskov, offered inform ation only to the governm ent-controlled Russian press. Because there w as not even a sign of a press centre at the crisis centre, these officials often cam e out to the streets of the tow n to find state correspondents. The Case of Raf Shakirov, the Editor-in-Chief of Izvestia. O n Saturday 4 Septem ber, Izvestia, the Russian daily paper, cam e out in an unusual form at. Having preserved the size and volum e of the publication, the editorial office decided to print large page-sized photographs of w ounded children on the first and the last pages of the paper. Inside the new spaper, there w ere also m any photographs. O n Monday 6 Septem ber, the decision of the paper’s ow ner, ProfM edia, to fire the paper’s editor-in-chief, Raf Shakirov, w as announced. In his interview w ith Radio Liberty, Mr. Shakirov explained the reasons for his dism issal: “The m anagem ent at ProfM edia and I had different view s about the form at of that issue. It w as considered too em otional and poster-like – in principle, new spapers are not m ade like that. Well, if you rem em ber – I don’t know w hether you have seen the Saturday’s edition – a half of it is devoted to coverage of the Beslan terrorist attack. It is truly m ade like a real poster: there is a huge picture on the front page and on the back. In general, w e have not used this poster like form at for the sake of fine w riting but this Saturday edition w as based on our assum ption of w hat it m eant for the country. The ProfM edia m anagem ent considered the issue too em otional.” O n 3 Septem ber, Raf Shakirov w as the first of Moscow paper chiefs to publicly state his attitude about the inform ation published by the m edia. In his interview w ith Rosbalt new s agency, he said: “The m edia drew the right conclusions from the N ord-O st events and now they deliver considerably less inform ation concerning the attack on Beslan. At the sam e tim e, it is necessary to report m ore about the children and their parents because this m ay w ake som ething hum an in the terrorists w ho are m ost likely to have access to radio and television even though attem pts to w in their com passion seem a little futile. New spapers have a different status during terrorist attacks REPO RTS AND STATEMENTS

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because the terrorists do not receive them . The press m ay allow w ide discussions about the appropriateness of m ethods in com bating terrorism and such a discussion has already begun.” It w as never confirm ed, at least for this report, that the Governm ent played a role in the dism issal of Shakirov. The Case of Anna Politkovskaya, a Correspondent from Novaya G azeta. Anna Politkovskaya, a correspondent from N ovaya Gazeta, intended to com e to Beslan on 3 Septem ber w ith Doctor Leonid Roshal w ho had been sum m oned by the terrorists as a negotiator. How ever, neither she nor other journalists w ere allow ed on Roshal’s jet. Politkovskaya could not get on other planes flying to tow ns neighbouring North O ssetia. She only m anaged to get on a Karat Airlines flight to Rostov-on-Don. Politkovskaya did not eat anything on the plane. She just asked a stew ardess for a cup of tea. Right after landing, Politkovskaya felt very ill. She w as taken to the intensive care unit of the central hospital clinic of Rostov-on-Don. The N ovaya Gazeta’s editorial office said that she m ay have intentionally been poisoned. The paper’s editor-inchief, Dm itriy Muratov, prom ptly flew to Rostov. Politkovskaya w as then transported to Moscow. The Case of Andrey Babitsky, a Correspondent from Radio Liberty. Andrey Babitsky, the correspondent for Radio Liberty, w as detained at Vnukovo airport (Moscow ) on 2 Septem ber. Babitsky w as supposed to fly to Mineralnye Vody in North Caucasus. According to the journalist him self, he and the Agence France Presse correspondent, Yana Dlugi, w ere detained under claim s that they had allegedly attem pted to transport explosives, as reported by Radio Liberty. During the luggage check, a specially trained dog reacted to Babitsky’s bag. Babitsky’s luggage w as searched. Because no explosives w ere found, the journalist w as set free. As soon as Babitsky w alked out of the m ilitia station, tw o young m en cam e up to him and started a dispute dem anding that the journalist buy them beer. At that m om ent, tw o m ilitiam en appeared on the scene and took the three m en to the station. This tim e Babitsky w as detained as a victim . The journalist w as forced to undergo a m edical exam ination to find out w hether he suffered injuries from the incident even though he said that no one had injured him .

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O n 3 September, a Justice of the Peace from Solntsevskiy district in Moscow sentenced Babitsky to a 15-day arrest. How ever, on 5 September, the Solntsevskiy district court changed that decision and released Babitsky changing the penalty to a 1,000-rouble fine (about USD 34).

Impact o f Go vernment Handling o f Info rmatio n o n Public O pinio n As a result of the fact that the nationw ide broadcasters in Russia failed to correctly inform the public, and in the w ake of this policy the m edia also underperform ed, the Russian people sensed that som e inform ation w as perhaps being concealed. Ekho M oskvy radio station conducted an interactive poll of its listeners (1,216 respondents), 92 per cent of w hich said that TV channels concealed parts of inform ation and only 8 per cent of the people polled thought that they received all the inform ation. O n 5-6 Septem ber, an independent analytical centre conducted a national poll by m eans of telephone interview s using a random representative sam ple. 1,974 people w ere polled in 23 of the biggest cities and 31 settlem ents of the Russian Federation. The poll w as m eant to display the level of citizensâ&#x20AC;&#x2122; trust of the inform ation on the terrorist attack. 36 per cent of the polled w ere constantly follow ing the unfolding events, not m issing a single new scast. 39 per cent w ere in touch w ith the situation all the tim e. 24 per cent follow ed the developm ents from tim e to tim e. 0 per cent did not know anything about the attack. 13 per cent of those polled had the feeling that they w ere receiving a full and genuine account. 45 per cent suspected the inform ation w as not reported in full (for security reasons). 22 per cent believed that except for som e reports, m ost of the inform ation w as false. 18 per cent of the polled said that they had the feeling that they w ere constantly being deceived or som ething very im portant w as being concealed from them .

Restrictio ns o n the Wo rk o f Fo reign Jo urnalists As early as on 2 Septem ber, according to Martin Wojciechow ski, the correspondent for the Polish paper Gazeta Wyborcza, a group of foreign journalists from Gazeta Wyborcza, Liberation and The Guardian w as detained at the airport in Mineralnye Vody. The m ilitia and FSB kept the journalists for several hours and thoroughly checked and REPO RTS AND STATEMENTS

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photocopied their travel docum ents. Besides, the security services staff asked the detained journalists about the w hereabouts of the Al Jazeera correspondents w ho had been sent to Beslan. O n 3 Septem ber, during and after the storm ing of the school, tapes w ith content of the storm ing w ere confiscated from TV crew s from Z DF (Germ any), ARD (Germ any), APTV (USA), and Rustavi-2 (Georgia). O n 4 Septem ber, the m ilitia and FSB detained the crew of the Georgian TV channel Rustavi-2 w hich included correspondent Nana Lezhava and cam eram an Levan Tetladze. They w ere accused of illegally crossing the border betw een Georgia and Russia. How ever, according to an intergovernm ental agreem ent, residents of the border region betw een the tw o countries can freely travel to the adjacent territory for 10 days. Unofficially, the fact that the journalists arrived at the school only 15 m inutes after its capture w as used as a fact to prove and accuse the journalists of having contact w ith the terrorists. According to the chief of Rustavi-2 new s service, Eka Khoperia: “The detention of the journalist could only happen because they (the Russian security services) did not like that she w as interview ing people w ho w ere not saying very flattering things about the adm inistration, the governm ent, about how it w as handled.” The journalists w ere released on 8 Septem ber. Nana Lezhava said that the security service staff w ho detained her did not treat the arrested badly. How ever, she w as forced to undergo a m edical exam ination although she had categorically been refusing to do so. Lezhava also said that she blacked out after drinking a cup of coffee that w as offered to her. O n 10 Septem ber, the Minister of Healthcare of Georgia, Vladim ir Chipashvili, said that Nana Lezhava, w ho had been kept for five days in pre-trial detention centres of the Interior Ministry and the FSB, had been poisoned w ith dangerous psychotropic drugs. O n 6 Septem ber, the chief of the Moscow bureau of the Arab satellite channel Al Arabia, Am r Abdul Ham id, w as detained at the airport in Mineralnye Vody. According to the head of the Kavm invodyAvia com pany, Vassily Babaskin, the journalist arrived at Mineralnye Vody from Beslan w here he w as preparing reports about the School #1 siege. He w as detained w hile checking in for a flight to Moscow because there w as an object forbidden by air travel regulations in his luggage. Later it w as reported that a gun cartridge had been found in his luggage. Am r Abdul Ham id is Egyptian but he has Russian citizenship. 234

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According to the TV channel, he w as detained for at least tw o days. Am r Abdul Ham in said he w as released on 8 Septem ber but a crim inal case w as launched against him . He believes that the cartridge for a Kalashnikov autom atic gun w as secretly put into his luggage at the Beslan hotel. Finally, on 7 Septem ber, North O ssetian security services expelled the crew from the Georgian TV channel M ze from Beslan. This included correspondent Zurab Dvali and his cam eram an. “The night before, very late, local law enforcem ent officers broke into our hotel room in Beslan and dem anded that w e im m ediately leave the tow n, saying that they could not ensure the security of the Georgian journalists,” Zurab Dvali said to Ekho M oskvy radio station. According to Mr. Dvali, “The representatives of the security services took the crew ’s travel docum ents and, at 9 o’clock the next m orning took them to the airport in a m ilitia car. It w as only at the entrance to the plane w hich w as flying to Moscow that they gave the journalists their IDs back.” Zurab Dvali noted that during his w ork in Beslan, he often had problem s w ith persons w ho said that the Georgians should not be there.

O bservatio ns o n Co nsequences o f Go vernmental Info rmatio n Practices According to current Russian legislation the only restrictions concerning the w ork of journalists are stipulated by tw o law s, one entitled “O n the Fight against Terrorism ” (1998) and one entitled “O n the Internal Security Troops of the Ministry of the Interior of the Russian Federation” (1993). These restrictions prohibit publishing inform ation on the relocation and the m anpow er of the m ilitary units of the internal security troops of the Ministry of the Interior as w ell as “disclosing inform ation about special technical m easures and the tactics of a counterterrorist operation w hich can im pede im plem entation of a counterterrorist operation and threaten the lives and health of the people w ho happened to be in the zone of the counterterrorist operation, or w ho are outside of the designated zone; [inform ation] w hich serves the propaganda or justification of terrorism and extrem ism ; [inform ation] about the staff of special units, m em bers of the crisis centre w hich controls the counterterrorist operation, as w ell as [inform ation] about the persons w ho facilitate the im plem entation of the m entioned operation.” REPO RTS AND STATEMENTS

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There are no other restrictions in the legislation. This is w hy any claim s by m ilitiam en or security services staff are even legally objectionable on the basis that they prevent journalists from exercising their profession. According to article 144 of the Crim inal Code of the Russian Federation, officials w ho restrict the w ork of journalists by prohibiting them from w orking – for exam ple, confiscating m aterials that they have film ed – m ay be prosecuted under crim inal law. O n 9 Septem ber, the Internet new spaper www.gazeta.ru ran an article by Georgiy Satarov, the president of INDEM Foundation, entitled The Lie that Kills in w hich the author offers his thoughts about the inform ation blockade of the governm ent-controlled m edia. He finished his article w ith the follow ing w ords: “I dem and to view this article as an appeal to the General Prosecutor’s O ffice. I dem and launching a crim inal case looking into the fact of m alicious m isinform ation w hich resulted in grave consequences.” How ever, there are w arning signs that in dealing w ith journalists covering terrorist attacks, som e Russian politicians continue to be guided by w hat is expedient from their point of view, rather than by w hat is legal. After the hostages w ere released, som e Russian politicians com m ented on the w ork of the press. Nezavisimaya Gazeta interview ed som e of these politicians. Lyubov Sliska, First Deputy Chairm an of the State Dum a, said “We should m ake sure that the m edia do not facilitate terrorist activity and all m eans are good for this. Am erica has show n a decent example after 11 September. And the w hole w orld said nothing. All the press lim ited its freedom s itself realizing that som e of its actions help terrorists. This is w hy w e should not be afraid of the suppression of freedom of speech, the suppression of dem ocracy. We can take any tem porary m easures to prevent anarchic terrorism .” The gravest consequence of the Governm ent’s inform ation policies w ere sum m ed up by political analyst Dm itriy O reshkin in his interview for Ekho M oskvy radio station: “In w hat w e receive from the official m edia one can feel, to choose m y w ords carefully, that som e facts are not reported. And if w e use real term s, one can feel that there is an attem pt to lead the discussion in the w rong w ay. As a result they w ill not lead in the w rong w ay but w ill lose the people’s trust. O ne can hardly believe now in w hat is said on television. Excuse m y using special term s, but the m echanism of com m unication betw een the pow er and the people is broken.”

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Finally, here is how several leading Russian and international hum an rights organizations – Am nesty International (AI), International League of Hum an rights (ILHR), International Helsinki Federation (IHF), International Federation of Leagues of Hum an Rights, Moscow Helsinki Group, All-Russian Movem ent for Hum an Rights, and Hum an Rights’ Defence Centre Mem orial, Hum an Rights Watch – com m ented. O n 8 Septem ber they issued a joint statem ent in w hich they pointed out the responsibility that Russian authorities bore in dissem inating false inform ation. “We are also seriously concerned w ith the fact that authorities concealed the true scale of the crisis by, inter alia, m isinform ing Russian society about the num ber of hostages. We call on Russian authorities to conduct a com prehensive investigation into the circum stances of the Beslan events w hich should include an exam ination of how authorities inform ed the w hole society and the fam ilies of the hostages. We call on m aking the results of such an investigation public,” the statem ent reads.

<http://www.osce.org/documents/rfm/2004/09/3586_en.pdf> (English) <http://www.osce.org/documents/rfm/2004/09/3586_ru.pdf> (Russian)

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Media Freedo m Vio latio ns in Belarus in 2004

State agency receives exclusive right to distribute TV listings. The Presidential Adm inistration’s BelTA new s agency w as given the exclusive right to distribute the TV listings of Belarus’ BT, O N T, STV and Lad ch an n els. M an y in depen den t n ew spapers, am on g th em Belorusskaya Delovaya Gazeta, N asha N iva, Vitebsky Kurier, and Gayeta Dlia Vas, received a contract from BelTA that indicated a price of BLR 5,025,000 (USD 2,300) for the m onthly subscription to TV guide listings. The previous cost of the TV program m e schedule w as BLR 80,000 – 250,000 (USD 40-150). 5 January 2004 Jo urnalist receives pho ne threat. In the night of the 10 to the 11 of Jan uary, Belorussk aya Delovaya G azeta’s correspon den t Iryn a Makavetskaya received several anonym ous threats on her hom e phone. During an entire hour, an unknow n m an phoned her several tim es dem anding that she stop her journalistic activities and leave the country and threatening to otherw ise “bury” her. Mrs. Makavetskaya has recorded one of the phone calls on a tape recorder. She has filed an appeal to the police dem anding that they reveal the identity of the anonym ous m an. 12 January 2004 State distributio n mo no po ly terminates agreement w ith BD G. Belarus’ national postal services Belpochta, w hich deliver new spapers to subscribers countryw ide, as w ell as the state distributor Belsayuzdruk, have both cancelled their 2004 contracts w ith Belorusskaya Delovaya Gazeta. 12 January 2004 O ne mo re independent new spaper fo rced to print abro ad. Having received refusals from all printing facilities in Minsk, on 8 January, the Belarusian independent new spaper Salidarnasc published its first issue in Sm olensk (Russia). O n 9 January, the new spaper w as sold in Belarus. Despite higher costs of publishing abroad, the new spaper has m anaged to retain its circulation – 5,000 copies. 12 January 2004 Tax inspectio n, fire inspectio n and ro ad po lice vs. independent new spaper. Tax inspection officials in Sm orgon confiscated the rem aining copies of the independent new spaper M estnaya Gazeta and 238

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m oney recovered from selling the new spaper printout from private distributors in Sm orgon. The distributors w ere charged w ith violating the order of retail trade, although the law doesn’t ban them from selling new spapers. The authorities are creating all sorts of obstacles for the new spaper. The editorial office is presently sealed by the fire inspection office and the car delivering the printout is frequently stopped by road police. M estnaya Gazeta is now published by Ram uald Ulan instead of N ovaya Gazeta Smorgoni. 16 January 2004 O ne mo re independent new spaper strangled. 16 January w as the last day of issue for the independent new spaper Region-Vesti in Svetlogorsk. The regional departm ent of Belarus’ distribution m onopoly Belpochta inform ed the new spaper about term inating the distribution agreem ent. Since the New Year, the new spaper had been publishing only TV listings, after local authorities had banned the local printer from printing any content that included inform ation under the logo of Region-Vesti. 17 January 2004 Printo ut o f Asambleja magazine disappears. The printout of Asambleja m agazine printed by the NGO Assem bly disappeared from the Minsk post office on 21 January. 22 January 2004 Narodnaya Volya faces tw o suits fo r a to tal amo unt o f USD 50,000. O n 15 January, the com pany Alliance Media (the founder of O bozrevatel new spaper) and the entrepreneur Sergey Atroshchanka brought a suit against N arodnaya Volya for defiling their honour and business reputation. The plaintiffs dem and that the Lenin District Court im pose penalties on the new spaper in the am ount of BLR 50,000,000 for each suit. The suits are based on tw o articles published in N arodnaya Volya last year. 28 January 2004 O ne mo re Belarusian independent new spaper fo rced to print in Russia. The first issue of a non-governm ental new spaper Den w as printed in Sm olensk (Russia) and delivered to Belarus on 28 January. According to the editor-in-chief, Mikola Markevich, on 28 January, the Roscherk com pany term inated a distribution contract w ith Den. 29 January 2004 Gro dno branch o f Belarus’ press distributio n co mpany refuses to distribute Den new spaper. O n 30 January, Den w as delivered to the distribution departm ent of Grodno Regional Union of Publishing REPO RTS AND STATEMENTS

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(Belsayuzdruk). How ever, the head of the departm ent refused to accept the new spaper for distribution referring to orders from the assistant director Galina Makarevich. According to the distribution agreem ent signed on 22 January betw een the publishers of Den and the distribution com pany, the com pany undertook to distribute 450 copies of the new spaper in the Grodno region. 30 January 2004 Jo urnalist sentenced fo r o n-line publicatio ns. The Court of Minsk Central District fined Natallia Kaliada, an em ployee of Charter-97 press service, BLR 350,000 (about USD 160) on 2 February. The judge considered the distribution of inform ation on the Charter-97 w ebsite to be a violation of articles 167-10 of the Adm inistrative Code. Natallia Kaliada m onthly updates the section “Monitoring of Hum an Rights Violations in Belarus” on the Internet site of Charter-97. The Prosecution becam e interested in the activity of Mrs. Kaliada after the journalist w as detained during a street action in Minsk on 10 Decem ber 2003. The Assistant General Prosecutor started legal proceedings against the journalist on 16 January of this year. 3 February 2004 Belarus cuts do w n Russian TV bro adcasting. O n 3 February, the relaying of Russian program m es by Belarusian TV channel O N T w as cut to the m inim um . O N T w ill broadcast only an edited version of the new s program m e Vremia. Belarusian TV authorities did not explain the m otives for this decision. 3 February 2004 Lo cal new spaper censo red by publisher. An issue of a w eekly new spaper Volnaje Hlybokaje dated 15-21 January w as published w ith an ad instead of an article about the m eeting of the Belarusian Popular Front. The decision to censor the new spaper w as m ade by the directors of the Peram oha publishing house. This publishing house prints Volnaje Hlybokaje. The editors w ere not inform ed of the decision. 5 February 2004 Vitebskiy K uryer published w ith “w hite spo ts”. The Friday issue of the private new spaper Vitebskiy Kuryer cam e out w ith blank spaces in place of its TV guide section as the publication could not afford to pay the BLR 5,025,000 (USD 2,330) charged by the state-controlled BelTA new s agency for subscription to the TV program m ing schedule. 6 February 2004

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Ministry of Information suspends another independent new spaper. O n 5 February, the Ministry of Inform ation suspended for one m onth the publication of yet another new spaper. The new spaper w as entitled Z goda. The order w as issued by the Minister of Inform ation, Uladzim er Rusakevich, follow ing tw o w arnings. 6 February 2004 Jo urnalists declined access to executive autho rities’ sessio n. The reporters of the www.belarusfree.org w ebsite and the non-governm ental new spaper Den w ere denied access to the m eetings of the Grodno Regional Executive Com m ittee on 6 February. The m eetings w ere due to the chairm an’s annual report. The journalists appealed to the Prosecution claim ing violation of the Law on Press. 9 February 2004 Ministry o f Info rmatio n suspended Veczernij Stolin. O n 11 February, Aliaxandar Ihnaciuk, the editor-in-chief of the non-governm ental new spaper Veczernij Stolin, received an order from the Ministry of Inform ation instructing him to interrupt publication for three m onths. According to the Minister of Inform ation, Uladzim ir Rusakevicz, the paper Veczernij Stolin violated the Law on the Press as w ell as a few decrees of the cabinet council. 12 February 2004 Jo urnalists remo ved fro m the hall. Independent journalists Andzhej Pisalnik (Den) and Iryna Czarniaw ka (Beloruskaja Gazeta) w ere rem oved from the hall at the beginning of the Grodno Regional Executive Com m ittee’s m eeting. The m eeting w as dedicated to the strategies of ideological w ork next year. This is the second tim e that Grodno authorities have interfered in the w ork of journalists this w eek. The journalists involved intend to appeal to the prosecution. 13 February 2004 Co urt partially satisfies a suit against Narodnaya Volya. O n 18 February, a court in Minsk partially satisfied the suit of Alliance-Media against the new spaper N arodnaya Volya. The court obliged N arodnaya Volya to pay court and law yer fees for Alliance-Media (founder of the O bozrevatel new spaper). How ever, the court w aived the claim ant’s dem and of USD 25,000 in com pensation of m oral dam ages. The suit w as triggered by an article in N arodnaya Volya covering the conflict betw een O bozrevatel and Mr. Levin, the head of the Union of Jew ish O rganizations. 18 February 2004

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Belorusskaya Delovaya G azeta fails to o verrule o ppressive verdict. O n 19 February, Belarus’ Suprem e Court rejected an appeal m ade by the new spaper Belorusskaya Delovaya Gazeta against the Ministry of Inform ation’s w arning issued on 26 Decem ber 2003. The w arning concerned three investigative articles w ritten by Sergey Satsuk w hich the Ministry claim ed did not correspond to reality. 19 February 2004 Pro secutio n resumes criminal investigatio n into the case o f Belorusskaya Delovaya G azeta jo urnalist. O n 26 February, prosecutors in Minsk reopened a libel case against Irina Khalip, deputy editorin-chief of the Belorusskaya Delovaya Gazeta. Ms. Khalip w as sum m oned to the Minsk Prosecutor’s O ffice for questioning in connection w ith an article that she had w ritten nearly 18 m onths before for the in vestigative supplem en t Beorussk aya Delovaya G azeta. Dlya Sluzhebnogo Polzovaniya. The story dealt w ith an official investigation into allegations of corruption against Viktor Kozeko, the form er head of the Belarusian State Food Industry, and his son. 1 March 2004 President prescribes mass media to pro mo te “civil security and discipline”. Starting 20 March, all printed and electronic m edia w ill have to introduce regular rubrics or series prom oting “civil security and discipline”. This is due to Directive 1 “About Measures to Im prove Civil Security an d D isciplin e” issued by Alexan der Lukashenko on 11 March. 12 March 2004 Independent new spaper o ffice invaded. O n 18 March, the police, called by an incidental w itness, detained tw o m en w ho w ere attem pting to unlock w ith false keys the office of the private new spaper Den in Grodno around 10 p.m . Editor-in-chief Mikola Markevich reported that he recognized a Com m ittee for State Security (KGB) officer am ong the detainees. The KGB O ffice for the Grodno region denied that any of its officers w ere involved in the attem pted break-in. 19 March 2004 Executive autho rities prescribe that businessmen subscribe to go vernmental editio ns. Last w eek, the Glybokaje District Executive Com m ittee issued a prescription to local private enterprises and single entrepreneurs indicating that they should subscribe to governm ental editions by 19 March. Each enterprise m ust subscribe for at least three editions and this m ust include a subscription for every staff m em ber for one national and one local new spaper. Executive authorities refer 242

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to the instructions Alexander Lukashenko gave during the sem inar on ideological activity on 27-28 March 2003. The letter also lists stateow ned enterprises that are obliged to subscribe to the governm ental press, that is: “every w orkshop, production section, farm , office, station, kindergarten, school, class, drugstore, dispensary, shop, etc.” 25 March 2004 Ministry o f Info rmatio n seizes Belarusian media market. The Belarusian Ministry of Inform ation put in force a new direction “O n Distribution of Periodicals Registered Abroad on the Territory of the Republic of Belarus” on 25 March. The docum ent prescribes a stricter control of the distributors of foreign m edia in Belarus. 26 March 2004 Public Pro secuto r’s o ffice suspends investigatio n o f D mitry Zavadsky case. The investigation into the disappearance of journalist Dm itry Zavadsky w as closed. International m edia observers are confident that those responsible have still not been found and the possible im plication of the highest levels of governm ent has still not been properly investigated. 6 April 2004 Print run o f Den arrested. O n 7 April, the print run of the new spaper Den w as seized w hile being transported from Grodno to Minsk. All 4,800 copies w ere confiscated due to “problem s w ith transport docum ents”. In the police report, no reasons for the seizure w ere given. Tw o adm inistrative protocols regarding the seizure w ere provided in May. The first protocol for the Denpres com pany w as issued for violation of transport docum ents. The second protocol concerned Mr. Markevich personally. 8 April 2004 Pro secutio n w arned edito r-in-chief o f Birzha Informatsii. O n 8 April, the Grodno Lenin district prosecutor’s office issued a w arning to Mrs. Elena Ravbetskaya, the chief editor of the non-state paper Birzha Informatsii, for violation of article 5 of the Media Law. The chief editor w as w arned for publishing inform ation on behalf of the unregistered political entity. 15 April 2004 Belarus censo rs Russian state TV. The broadcast of the Russian TV channel Rossiya w as interrupted on 17 and 18 April from 5 p.m . to 8:30 p.m . The cut-off clashed w ith the broadcast of the analytic show s Z erkalo and Vesti N edeli. The Belarusian TV Centre explained the cut-off w ith the claim of “unplanned repair w ork” at the Rossiya REPO RTS AND STATEMENTS

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TV channel. How ever, Rossiya denies technical reasons for the incident. The presenter of Z erkalo, Nikolai Svanidze, told the Belarusian Service of Radio Liberty that the channel directors w ere indignant about the actions that the Belarusian side had undertaken. Mr. Svanidze thinks that the broadcast w as interrupted because it had been announced that the above show s contained Belarusian-related stories. The show Z erkalo w as to discuss the address of Alexander Lukashenko to the National Assem bly and to the Belarusian nation. The show Vesti N edeli w as to talk about the Saturday cut-off. 21 April 2004 Court fines journalist of Gazeta Dlia Vas for slandering election committee chairman. The Biarozaw District Court fined journalist Tamara Schapioktina of the Gazeta Dlia Vas new spaper BLR 300,000 (about USD 150) for slandering the chairman of the divisional election committee. The suit w as based on an incident that took place during the by-election to the Belaazersk Soviet of Deputies on 23 November 2003. 22 April 2004 New spaper denied access to printing facilities. Three publishing houses, Tytul, Palesdruk, and Svetoch, refused to print the Gom el regional new spaper Volny Chas. 27 April 2004 Radio Liberty repo rter detained. O n 7 May, during the street action dedicated to the anniversary of the disappearance of the ex-Minister of Foreign Affairs Yuri Zakharenko, the police arrested Radio Liberty reporter Vinces Mudrow. O n 10 May, along w ith seven arrested protesters, Vinces Mudrow w ent on trial for “participation in unsanctioned action.” How ever, the trial w as postponed until 11 May since the w itnesses for the police did not com e to yesterday’s hearings. Today, the judges discharged all the participants of the street action. 11 May 2004 KGB interrupts issuing o f Den. O n 11 May, in Grodno, searches w ere m ade in the offices of NGO s, one of w hich served as an editor’s office of Den. The KGB investigators w ere looking for places w here the leaflets dedicated to 1 May w ere printed. In the leaflet, there w as a poem in w hich the KGB found an insult of the president. As a result, PCs of the editorial offices of the Den new spaper w ere seized. By that tim e, the issue w as 75 per cent prepared. 12 May 2004 Minsk printer refuses to print Novaya G azeta Smorgoni. The Minsk printing com pany Svetoch refused to sign a contract for printing the 244

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independent new spaper N ovaya Gazeta Smorgoni. Svetoch m anagers also declared that they w ould no longer print the Sm orgon edition of M estnaya Gazeta. M estnaya Gazeta has been published since last autum n at w hich tim e the publication of N ovaya Gazeta Smorgoni w as suspended. In April 2004, Ram uald Ulan, the publisher of N ovaya Gazeta Smorgoni renew ed his business certificate and w ill now resum e publication of his new spaper. 17 May 2004 Po lice arrest distributo r o f independent new spaper. O n 14 May, police in Mahileu took Uladzim er Shantsau, activist of the opposition United Civic Party, to a police station and detained him for distributing free copies of the independent new spaper Vremya w ithout any authorization docum ents. 17 May 2004 Miko la Markevich fined USD 10. O n 26 May, a Grodno Court approved the confiscation of the new spaper Den and fined the new spaperâ&#x20AC;&#x2122;s editor-in-chief, Mikola Markevich, USD 10. 27 May 2004 Censo rship at Sveto ch Publishers. O n 28 May, the Minsk publishing house Svetoch cancelled their agreem ent w ith M estnaya Gazeta, a Volkovysk non-governm ental new spaper. 27 May 2004 No mercy fo r Narodnaya Volya. The panel of judges of the Suprem e Court decreased the am ount of the penalty im posed on Marina Koktysh, journalist of the new spaper N arodnaya Volya, and on the form er broadcaster Eleanora Ezerskaya, to USD 500. The appeal to revise the am ount of m oral dam age w as initiated by the vice-chairm an of the Suprem e Court, Valery Vyshkevich. The appeal did not concern USD 25,000 in dam age claim s that N arodnaya Volya has to pay Egor Rybakov. 31 May 2004 Jo urnalists kept o ut o f Parliament. O n 3 June, a num ber of Belarusian and foreign journalists accredited at the Cham ber of Representatives, w ere forbidden to enter the building of the Parliam ent. Valery Frolov, the deputy of the Respublika group, w as expected to address the Parliam ent today. 4 June 2004 Jo urnalists no t admitted to the Parliament. Several journalists of Belarusian and foreign m edia accredited by the Belarusian Parliam ent w ere not adm itted in the Parliam ent building by m en in civilian clothes w ho refused to identify them selves. The heads of Belarusâ&#x20AC;&#x2122; legislature REPO RTS AND STATEMENTS

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claim ed that som e m edia are biased in covering the w ork of Belarusian MPs. From 8 a.m . on, the access to the building w as blocked by secret services, according to the press release distributed by the group Respublika. The disgraced journalists included Maryna Koktysh (N arodnaya Volya), Yury Patsiom kin (BelaPAN ), Andrey Makhousky (Reuters) and Yuras Karm anau (AP). 8 June 2004 Jo urnalist depo rted fro m Belarus. O n 21 June, Mikhail Podolyak, a Ukrainian freelance journalist, w as expelled by the Com m ittee for State Security (KGB) as a person responsible for allegedly biased coverage of social and political events in the country. In addition, the KGB accused Mr. Podolyak of violating regulations governing foreign citizens’ stay in the country. 21 June 2004 Radio Liberty co rrespo ndent detained. O n 22 June, Radio Free Europe/ Radio Liberty journalist Yuri Svirko w as forcibly expelled from the Parliam ent building. Mr. Svirko’s accreditation card and the tape recorder w ere taken aw ay by a person in civilian clothes w ith intercom equipm ent claim ing to represent security and the content of the recoded disc w as erased. No reasons w ere given for the expulsion. A correspondent for the N arodnaya Volya new spaper w as also barred from the Parliam ent, w here a debate on the am endm ents to the Electoral Code proposed by the group Respublika w as taking place. 23 June 2004 Narodnaya Volya to lo se its title. O n 1 July, the Board of Appeal of the National Intellectual Property Centre upheld its Decem ber 2003 decision passing the trade m ark N arodnaya Volya to the entrepreneur Syarhey Atroshchanka. Syarhey Atroshchanka can ask the editors of N arodnaya Volya to change the title at any m om ent. 6 July 2004 Ministry o f Fo reign Affairs shuts do w n RTR representatives. O n 30 July, the Ministry of Foreign Affairs deprived all four Minsk RTR office em ployees of accreditation. The Ministry considered that the Russian RTR channel inaccurately covered a street action w hich took place in Minsk on 21 July and w as dedicated to the tenth anniversary of Alexander Lukashenko’s presidency. But it w as a reporter from Moscow w ho covered the event during his tw o-day visit to Belarus, not the Minsk RTR office. 2 August 2004 Narodnaya Volya’s equipment distrained. O n 2 August, court officers distrained property w orth USD 29,500 belonging to editors of 246

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N arodnaya Volya. This distraint is m eant to cover m oral dam age as defined in the suits Sergey Atroshchanka vs. N arodnaya Volya and Egor Rybakov vs. N arodnaya Volya. 3 August 2004 Rabochaya Salidarnasc ceases to exist. O n 2 August, the Suprem e Court of Belarus decided to liquidate the Belarusian Labour Party (BLP) w hich led to the close-dow n of a partisan new spaper called Rabochaya Salidarnasc. The Ministry of Inform ation explained that Rabochaya Salidarnasc w as closed because the BLP w as registered as the new spaper’s founder. 4 August 2004 Novaya G azeta Smorgoni suspended. O n 16 August, the Minister of Inform ation, Uladzim ir Rusakevich, signed the order to suspend a non-governm ental new spaper called N ovaya Gazeta Smorgoni and published by an entrepreneur nam ed Ram uald Ulan. Mr. Ulan is accused of violating article 10 and article 12 of the Law on Press and other Mass Media. According to article 10, a new spaper m ust have a charter in order to register. Article 12 claim s that an edition can only be founded by a legal entity. How ever, form er rules of registration, according to w hich N ovaya Gazeta Smorgoni w as founded, don’t presuppose those conditions. 19 August 2004 Executive authorities forbid shop ow ners to sell independent press. A num ber of large shops in Minsk refused to sell leading non-governm ental editions, such as Belorussky Rynok, Belorusskaya Delovaya Gazeta (BDG), Belorusskaya Gazeta and N arodnaya Volya. The ow ners of som e shops didn’t even notify the editors w hile cancelling the distribution agreem ents. 24 August 2004 Navinki suspended. O n 27 August, the Minister of Information, Uladzimir Rusakevich, signed an order to suspend the Navinki new spaper for three months. The new spaper is accused of violating a number of articles of the Law on Press and other Mass Media. 30 August 2004 Po lice questio n o rigin o f Vremya. O n 31 August, the Zhlobin District Court charged local police w ith the task of “checking the origin” of the new spaper Vremya. O n 12 August, policem en seized m ore than 1,000 copies of the new spaper from Uladzim ir Katsora, a United Civil Party activist, as w ell as 15 packages of leaflets issued by the coalition 5+. The court im posed a fine of USD 270 on Mr. Kastora. The judge of the Zhlobin District Court, Alena Yarm olchyk, considering that the REPO RTS AND STATEMENTS

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transportation of these printed editions by Mr. Katsora w as an activity on behalf of an unregistered political party or public organization, decided to destroy all the leaflets. The district police w ill additionally investigate the origin of Vremya. 1 September 2004 Vremya and Predpinimatelskaya gazeta suspended. The registration departm ent of the Ministry of Inform ation confirm ed that a num ber of non-state editions including the new spapers Vremya, Predpinimatelskaya gazeta, Luboy kapriz and Allo! Kuplyu, prodam, menyayu w ere suspended for three m onths. The Ministry stated the intention of “establishing order” in the field of the press. 3 September 2004

Reports by the Belarusian Association of Journalists, Radio Liberty, Reporters sans frontières, Charter 97 and w w w.spring96.org w ere used to prepare this com pilation.

<http://www.osce.org/documents/rfm/2004/09/3587_en.pdf>

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Annual Human D imensio n Implementatio n Meeting, Warsaw 6 O cto ber 2004 Speaking Points

The last tim e I visited this m eeting, in 2003, I spoke on behalf of Hungary. In March this year, w ith the support of the participating States, I have replaced Mr. Freim ut Duve. This O ffice ow es a lot to this devoted and passionate fighter for freedom of the m edia. When trying to reshape our w ork, I can build in m any respects on his. Since March w e did follow m any of the paths m y predecessor pioneered, and added som e new ones. We protested and protected w henever journalists or their w orking conditions w ere at risk. We urged investigations into issues of m urders and disappearances of journalists, like the Gongadze case in Ukraine, or the m ore recent Khlebnikov case in Russia. We raised issues of access to inform ation as w ell as to the free flow of inform ation. For exam ple, these issues w ere of particular concern quite recently w ith the problem s that occurred after the tragic events in Beslan, in Russia, or the case of the so-called “book em bargoes” in the US. We voiced concern given the fact that, in large parts of the O SCE region, radio and television pluralism still do not exist and therefore true freedom of the press is practically confined to the print press and a still “baby” Internet sector. But in this report, I w ould like to focus on tw o general dangers that over the last period of tim e have becom e “fashionable” trends in suppressing the independent part of the m edia. Both “m ethods” use seem ingly legal m eans. They are even presented as a “sticking” to the rule of law. O ne trend is to use libel, defam ation and insult law s, and the other – let’s call it “adm inistrative discrim ination” – has used registration and other adm inistrative regulations to hinder independent and non-governm ental m edia.

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1. Libel I am continuing the w ork on libel: for several years now this O ffice has been actively lobbying for its decrim inalization. Positive Developments. Already, as of today, five O SCE participating States have abolished libel as a crim inal offence, and turned to its civil-law based handling: USA (although 17 states w ithin this country still retain their crim inal libel provisions, albeit in the books only), Moldova, Ukraine, Bosnia and Herzegovina, and Georgia. Also, on 1 July, President Robert Kocharian signed am endm ents to the Crim inal Code partially decrim inalizing libel in Arm enia. In a letter to Foreign Minister Vardan Askanyan, I w elcom ed this as a step in the right direction. At the sam e tim e, libel rem ains a crim inal offence and the existing provisions still offer m ore protection for public officials than ordinary citizens. O n 15 O ctober 2004, the Parliam ent in Slovakia w ill have a debate on a new Crim inal Code. To m y know ledge, under the current proposal subm itted by the Ministry of Justice, articles 331 and 384 still w ould retain crim inal penalties for defam ation or slander that exist in the current penal code as articles 154, 156 and 206. In a letter to Deputy Prim e Minister and Minister for Justice Daniel Lipsic, I urged him to reconsider his original proposal. Both Arm enia and Slovakia should not m iss this opportunity for reform and should join those countries that have decrim inalized libel and have set a good exam ple to be follow ed by other O SCE participating States. Unfortunately, in June the Kyrgyz Parliam ent rejected for the third tim e in seven years an initiative by President Akayev to decrim inalize libel. Cases Raised. Here are som e recent libel cases that I have raised. In Hungary, an appeals court in early July suspended a ten-m onth prison sentence against editor Andras Bencsik for tw o years. An eight-m onth suspended prison sentence against journalist Laszlo Attila Bertok w as upheld. The case w as brought by MP Im re Mecs after Demokrata, the w eekly that Bencsik edits, alleged that testim ony by Im re Mecs had played a role in the sentencing of four people to death after the 1956 revolution. In Poland, the Warsaw Suprem e Court upheld a three-m onth prison sentence against Andrzej Marek, editor-in-chief of the w eekly Wiesci Polickie (Police New s), for libelling a local official. 250

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In another case in May 2004, Beata Korzeniew ska, a journalist for the daily Gazeta Pomorska, received a suspended one-m onth prison sentence for libelling a judge from the city of Torun. In Azerbaijan, w e have been follow ing several crim inal libel cases. I w as pleased to hear that on 24 June 2004, the Nizam i District Court dropped the charges against Irada Huseynova, a journalist w ith Bakinski Bulvar. How ever, the case of Huseynova rem ains an exception to the rule and libel law suits against journalists are unfortunately still a regular occurrence in Azerbaijan. We w ere just inform ed that the editor-in-chief of Baki-Khabar, Mr. Aydin Q uliyev, w as sentenced to one year suspended im prisonm ent for reprinting an article from another new spaper. This case is particularly alarm ing since the sam e journalist w as physically assaulted in July as is m entioned later in this report. We also heard that Elm ar Huseynov, the editor of the w eekly M onitor, is facing a trial in a libel suit filed by a Mem ber of the Parliam ent from the ruling party. Not only incarceration for libel can cause dam age to the general state of m edia freedom . O n 16 July 2004, in a suit brought by the Presidential Adm inistration for libel, an Alm aty district court in Kazakhstan ordered the w eekly new spaper Assandi-Times to publish a retraction as w ell as to pay 50 m illion tenge in m oral dam ages. That sentence practically annihilated the new spaper, an im portant independent voice in the country. Nothing could be a clearer proof that crim inal libel in all its form s is having a general chilling effect on press freedom . Legal Reform Urged. In som e of these cases, I do not question the independence of the judiciary and its adherence to the law of the country. How ever, even if libel is a crim inal offence, I urge the countries, as a first step, to “de-prisonize” it, or as has been suggested by one Am bassador, to “de-incarcerate” it. These ancient libel law s are inadequate, even detrim ental, to a tw enty-first century dem ocracy w here freedom of the press and uninhibited discussion of public issues could be dim inished by the effect of a crim inal libel sentence used against journalists for their w ork. Som e of the countries w e approach about crim inal libel refer to the older dem ocracies of Europe. For exam ple, the Justice Minister of Hungary pointed out that Germ any, Austria, and Sw itzerland, countries the legal system s of w hich have traditionally served as a reference points for Hungary, also have crim inal libel provisions. In these cases, w e can hardly expect success by pointing to the fact that these countries do not use these ancient law s against journalists. REPO RTS AND STATEMENTS

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Why don’t w e go a step further, for the benefit of the w hole O SCE region? Where crim inal libel law s have not been utilized for decades, I see no reason w hy they should not be taken off the books. I urge all countries to do so. The EU Should Take the Lead. The case of Hungary and Poland is also im portant because these new m em bers of the European Union serve as further reference points for other new dem ocracies. If, instead of reform ing their legislation tow ards conditions favourable for freedom of the m edia, they stick to old patterns, w hat can w e expect in countries w here it is often the case that a journalist is sued for libel by a public official w ho is criticized, m aybe even unjustly, in his or her official capacity? As early as on 25 April 1999, a judgm ent by the European Court of Hum an Rights in the case of O berschlick v. Austria adopted this guideline: “The lim its of acceptable criticism are accordingly w ider w ith regard to a politician acting in his public capacity than in relation to a private individual. The form er inevitably and know ingly lays him self open to close scrutiny of his every w ord and deed by both journalists and the public at large, and he m ust display a greater degree of tolerance, especially w hen he him self m akes public statem ents that are susceptible of criticism .” I see it as im perative that the European Union, as an im portant group of countries w ithin the O SCE region, take the long overdue reform initiative and jointly decide that all Mem ber States of the EU should abolish crim inal libel, defam ation and insult provisions, and opt for civil-law based solutions instead. I see that breakthrough as a prerequisite for a significant progress in journalists’ w orking conditions in the w hole of the O SCE area. Invitation. My O ffice is currently in the process of developing a database m atrix on libel legislation in the O SCE region. This m atrix w ill also be accom panied by a legal analysis that w ill explain our findings, and help define the best w ays to resolve the problem . I hope to present the m atrix early next year. My O ffice is also currently review ing libel legislation in Albania and Azerbaijan for its com pliance w ith international standards, and w e are planning a round table on this topic in Baku in O ctober. Here in Warsaw, this afternoon w e w ill have a side-event that w ill present our initial findings concerning libel in all our participating States and I cordially invite you to take part in it. 252

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2. Administrative D iscriminatio n There is a vivid fear am ong the journalists of the O SCE region from a w ave of “legalistic” discrim ination against the independent press. The essence of the “new m ethod”, as som e called it, w as a “strict” adherence by the authorities to “legality”, in a w ay that in reality leads to a basic violation not only of press freedom but also of equality under the law, that is, legality itself. Harsh, devastating m easures are taken against these quite sm all m edia ventures, conducive to their closing, suspending, or crippling – but such m easures are taken only against independents, never against state-ow ned or pro-governm ental m edia. Let m e use only tw o very recent exam ples. In our Sixth Central Asian Media Conference an appeal raised the cases of the “m issing titles” in Tajikistan. The participants urged the Tajik authorities to ensure a positive outcom e of the dispute over “tem porarily silent” independent publishing houses and new spapers. The journalists from the other Central Asian countries had m any sim ilar com plaints. It is a m ajor shock for any dem ocracy w hen six independent titles disappear from the m arket, supposedly for either not precisely disclosing the num ber of their printed copies or for other adm inistrative errors. In Belarus, over the past tw o m onths nine new spapers have been closed dow n for different adm inistrative reasons. This is, in and of itself, a shock and to m y know ledge never since the establishm ent of the O SCE has a sim ilar developm ent on this scale ever happened. These tw o exam ples are only sam ples of a w ide array of cases. There cannot be true freedom of the m edia w ithout stopping the new fashion of adm inistrative, “legalistic” discrim ination. The participating States ought to enforce true legality. That m eans equal handling of the tw o sectors: the taxpayer-paid governm ental m edia and the civil self-sustaining m edia. We understand that in the new dem ocracies there is still a sizeable governm ental m edia, even in the print press, a notion you don’t find in old civil societies. But even if w e see the existence of the stateow ned m edia as a transient fact of life, the States should m ake sure that the w eak independent sector is not discrim inated against.

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Regular Repo rt to the Permanent Co uncil o f 16 D ecember 2004

This is m y last regular report this year. O ver the past three m onths, w e have raised cases of m edia harassm ent, co-operated w ith governm ents and parliam ents on legal reform in the m edia field, travelled throughout the region to conduct assessm ent visits, to hold conferences, and to m eet w ith journalists and officials; w e have even published a book. We further elaborated on the principles guiding our w ork. The idea is to co-operate w ith the participating States on such long-term strategic issues as libel decrim inalization, access to inform ation, or freedom of the Internet. First of all, here are just som e of the cases w here I intervened: In Belarus, asking for a sw ift investigation into the m urder of journalist Veronika Cherkasova; In Bulgaria, regarding Rom anian television journalist George Buhnici (Bucharest-based Pro TV) accused of using a â&#x20AC;&#x153;special technical device designated for tacit collection of inform ationâ&#x20AC;?; In Cro atia, on sentencing journalist Vladim ir Matjanic to a suspended prison term for libel; In the Netherlands, asking for a sw ift investigation into the m urder of journalist Theo van Gogh; In Russia, concerning the arrest of journalist Mikhail Afanasyev and the need to decrim inalize libel; In Tajikistan, urging the Governm ent to help resum e publication of five independent new spapers; also on the new spaper Ruzi N av w hich w as im pounded by the tax police; In the US, concerning regulations that require publishers and authors to seek a licence from the Treasury Departm ent to publish literature from em bargoed countries such as Cuba, Iran and Sudan; In Ukraine, I voiced concern over several m edia outlets that w ere harassed in the regions during the post-election period; In Uzbekistan, concerning the suspension of activities of Internews for six m onths for adm inistrative violations. 254

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Now I w ould like to focus on m y second assessm ent visit as the O SCE Representative and on our long-term strategies of com plying w ith free m edia principles. Moldova. I conducted m y second assessm ent visit in O ctober, this tim e to Moldova, at the invitations of both the Governm ent and of the O SCE Mission there. O verall, m edia pluralism is highly developed in Moldova, both in term s of quantity of m edia outlets and of different view s that are represented (albeit diversity on both counts is m ore present in the print press than in the broadcast m edia). Politicians of all ranks are regularly criticized in the m edia; independent TV and radio stations are very outspoken in their com m ents on the authorities. There is also an open debate regarding the developm ent of the m edia itself; this debate w as described by the Foreign Minister as “transparent”. New spapers that support the Transdniestrian separatist authorities are freely distributed in Moldova. Moldova, like few other O SCE participating States, has decrim inalized libel. The O ffice of the Representative has been advocating libel decrim inalization in the O SCE region for alm ost four years. The m ain issue that I discussed w as the situation around TeleRadio M oldova (TRM ). I w ould like to praise Moldova for being one of the first countries in the region that transform ed its state broadcaster into a public service. How ever, the quality of new s coverage, its overw helm ing tilt tow ards the ruling party is of concern, as w ell as a labour dispute that is taking on political overtones. I have distributed m y Report on the M edia Situation in M oldova. Let m e just focus on m y recom m endations: • Moldova should be encouraged, both regionally and am ong all O SCE participating States, to publicize the fact that it is one of the few countries in the w orld that have decrim inalized libel. • There can be no true pluralism w hen there are no com peting dom estic nationw ide channels. In this situation, a transparent tender is needed for another nationw ide frequency. • TRM , although legally transform ed from state broadcaster into an autonom ous public service institution, in reality continues to tilt tow ards the Governm ent. Most of the political program m ing is reported to be new s on and by the ruling party. In this situation, w hen TRM is the only dom estic nationw ide broadcaster, balanced coverage of political events is even m ore im portant. TRM still has to live up to its com m itm ents as a public service broadcaster. REPO RTS AND STATEMENTS

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• Both TRM m anagem ent and CADUP that represents journalists w ho w ere not hired as part of the transform ation process from state to public broadcaster should agree on a com prom ise through negotiations. • A new TRM selection com m ission should be created. • The current TRM Supervisory Board (SB), although in theory its m ajority is form ed by civil society, does not represent the w hole spectrum of view s prevalent in society, and in fact allow s for political one-sidedness. The current law should be changed to allow for a different com position of the SB. • Tenders for frequency allocations are offered at very short notice, and do not provide enough tim e for potential applicants to prepare all the necessary docum ents. The com position of the Audio-Visual Council does not guarantee its objectivity. Also, there is a lack of transparency in the decision process regarding the allocation of frequencies. • Parliam entarians should be urged to refuse to pass a law that provides for the re-registration of new spapers. • The Representative cannot recom m end a forced privatization of all governm ent-ow ned new spapers although the concept of a taxpayer supported print m edia is incom patible w ith advanced dem ocracy. How ever, as a m inim um requirem ent, the num ber of these new spapers should not grow, and there should be no adm inistrative or advertising discrim ination against the non-governm ental print press. There is no need to re-establish the so-called rayonnie gazeti, that is, the district new spapers paid for by local governm ents. • Civil defam ation penalties rem ain high and are often m isused by public officials. A reasonable ceiling could be introduced for such penalties. Courts should expose public figures to a higher degree of criticism , as endorsed by relevant rulings of the European Court of Hum an Rights (ECtHR). • The Transdniestrian m edia are under severe pressure and international organizations should find w ays to try to help independent journalists in the region.

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Libel Decriminalization and Freedom of Information. Concerning our long-term w ork on im proving preconditions for a free m edia, our focus rem ained on the exem ption of journalists from crim inal prosecution w hen they happen to publish libellous or secret inform ation. These offences should be dealt w ith w ith the help of relevant civil-law provisions; and w hen adjudicated as civil disputes, overriding public interest about the inform ation in question should be taken into account. This is an especially challenging exercise w hen it com es to inform ation regarding public figures. The practice of the ECtHR established the standard that, for the sake of a free exchange of opinions, public figures have to endure m ore harsh criticism than “ordinary” citizens. In fact, at stake here is the recognition, both in old and new dem ocracies, that the press should not be handled as an “organ” or “appendix” of the State; the m edia in a dem ocracy serves as an institution of civil society, and journalists should not be treated as crim inals w hen acting on behalf of civil society. Joint Declaration of the Three Mandates on Access to Information. Just last w eek I issued, together w ith the UN Special Rapporteur on Freedom of O pinion and Expression and the Media, and the O AS Special Rapporteur on Freedom of Expression, a Joint Declaration on access to inform ation. The principles and recom m endations in that docum ent are extrem ely relevant to the O SCE com m unity. There can be no free press w ithout the citizens’ right to access inform ation held by public authorities. The declaration states that it is a fundam ental hum an right w hich should be given effect at the national level through com prehensive legislation (for exam ple Freedom of Inform ation Acts). The principle of m axim um disclosure should be established also in m odern classification rules w hich are based on the presum ption that all inform ation is accessible, subject only to a narrow system of exceptions. The Joint Declaration also pointed out that the sole responsibility for protecting the confidentiality of legitim ately secret inform ation lies w ith the public authorities and their staff w hose official job is to hold that inform ation. That m eans that other individuals, including journalists and civil society representatives, should never be subject to liability for publishing or further dissem inating this inform ation, regardless of w hether or not it has been leaked to them , unless they com m itted fraud or another crim e to obtain the inform ation. REPO RTS AND STATEMENTS

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We, as the three w orld-w ide defenders of freedom of expression, recom m end a reform of the penal codes. “Crim inal law provisions that don’t restrict liability for the dissem ination of state secrets to those w ho are officially entitled to handle those secrets should be repealed or am ended” – w e said in our Joint Declaration. The principles contained in the Joint Declaration are key to any society that is keen on freedom of the press, and provide a legislative agenda not only to new dem ocracies. Access to Information Cases in Participating States. The high relevance of these principles w as proven in several participating States during the last m onths. In Belgium, the prosecution is still considering a leak-of-inform ation case in w hich, as I had reported to you, the office of Germ an journalist Mr. Hans-Martin Tillack w as searched and he w as detained for som e hours by police this March. But now the Cham ber of Representatives of Parliam ent passed a law establishing the non-liability of journalists w ho publish official inform ation know n as Loi accordant aux journalistes le droit de taire leurs sources d’information. This new law is aw aiting debate and approval by the Senate, the upper house. I congratulate Belgium on its pioneering w ork. It is im portant not only for the handling of the pending case of Tillack but for the w hole of Europe and the O SCE area w here outdated penal provisions are still rarely brought in line w ith already existent progressive rules on freedom of inform ation. The relevance of the Joint Declaration is also show n in Hungary. There, I had to intervene in the case of Ms. Rita Csik. For the first tim e in dem ocratic Hungary, a journalist w as indicted and m enaced w ith a prison sentence for publishing a leaked police docum ent on a politician’s business interests. Again, I don’t only hope that the dam age done to freedom of the press by the very utilization of an antiquated penal law w ill be corrected by the courts; m y m ore profound hope is that, just like Belgium plans to do, the outdated law w hich brands any citizen a crim inal w ho obtained, passed on, distributed, or published a classified piece of inform ation w ill be changed. The new rule should retain crim inality for the actual official w ho leaked classified inform ation and w ho is an authorized handler of state secrets. This is w hat our Joint Declaration stipulates. In the last m onths, it w as the United States o f America w here w e have seen the biggest num ber of freedom -of-inform ation related “crim inal cases” against journalists. 258

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Tw o reporters, Matthew Cooper of Time m agazine and Judith Miller of The N ew York Times now face as m uch as 18 m onths in jail for refusing a court order to testify about their contacts w ith confidential sources also related to the leaking of the nam e of a CIA official to colum nist Robert D. Novak. Now, in the US, as it should be, the crim e and punishm ent of the actual person w ho leaked classified inform ation is separate from the act of publishing such inform ation. The journalists are protected from revealing their sources in 49 states and in the District of Colum bia. How ever, no such protection exists at the federal level. Therefore, in a letter w ritten recently to Attorney General John Ashcroft, I asked for his explanation on w hy the prosecution refrained from considering Ms. Judith Miller’s right to protect her sources. Regrettably, I have not yet had any answ er from the Attorney General’s O ffice. I understand that last w eek a three-judge panel of the federal appeals court in Washington has started hearing this case. Whatever the decision w ill be in Miller and Cooper, the num ber of sim ilar cases has reached an unprecedented level in the US. Tw o other journalists are also subpoenaed in this case. O n 9 Decem ber, Jim Taricani, a Rhode Island investigative reporter w ith W JAR television, w as sentenced to six m onths’ house arrest for refusing to reveal w ho illegally leaked him an FBI surveillance tape. Five other reporters are appealing contem pt citations over their refusal to testify about confidential sources in a federal law suit by form er nuclear w eapons scientist Wen Ho Lee. The US needs to pass a federal law, w hile European dem ocracies like Belgium and Hungary need national legislation, that w ould shield journalists from forced disclosure of sources. Prosecutors are expected to act in “good faith” and not apply antiquated law s that w ork against freedom of the press; just as w e expect journalists to act in “good faith” and be sure they do not obtain secrets in a crim inal w ay, and they are publishing in the public interest. Where We Stand on the Matrix. Since June 2004 m y O ffice has been w orking on the project Libel and Insult: A M atrix on W here We Stand and W hat We Would Like to Achieve as part of m y cam paign against crim inal liability and disproportionate civil penalties for defam ation. I have gathered inform ation about the legal situation and available statistics of court practices in 35 O SCE participating States. I w ould like to thank the 18 participating States w hose authorities have already responded to m y request for assistance in collecting REPO RTS AND STATEMENTS

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inform ation for the project. Also, data on 17 countries and territories had been provided by O SCE field operations that w ere assisted by local m edia NGO s and independent experts. Their contributions are now being processed and translated, w here needed, so that they can be included in the database. O ur partner NGO Reporters sans frontières has assisted m y O ffice in collecting inform ation on six O SCE participating States. I plan to present the results of this survey to the Perm anent Council in February 2005. Recently, I visited the Council of Europe w here I had several m eetings. The focus again w as libel and w e are looking at w ays on how w e can enhance co-operation betw een our tw o organizations on this m atter. I also plan to present our m atrix to the Council of Europe. The European Union Must Take a Bold Lead in Decriminalizing Libel. It is im perative that the European Union, as an im portant group of countries w ithin the O SCE region, take the long overdue reform initiative and jointly advise that Mem ber States of the EU should abolish crim inal libel, defam ation and insult provisions, and opt instead for civil-law based solutions. Most of these dem ocracies avoid using crim inal provisions for such offences; how ever, the m ere fact that they are still on the books sends the w rong m essage across the O SCE area. A new EU guideline in this respect w ould be a breakthrough and a prerequisite for significant progress in journalists’ w orking conditions in the w hole O SCE area. Legal Assistance. The Sixth Central Asian Media Conference, convened in Dushanbe on 23-24 Septem ber 2004, discussed our tw o them es, libel and freedom of inform ation, from the view point of the experiences of Central Asian journalists. Approxim ately 100 journalists agreed that the obsolete libel law s w hich exist in Central Asian countries are detrim ental to freedom of the press. Several cases w ere discussed by the participants, som e of w hom had personal experiences of being prosecuted for libel. In the freedom of inform ation sphere substantial problem s rem ain. None of the countries have law s that m eet international standards on access to inform ation. State Secrets Acts that underm ine the right to access to inform ation are often used and abused. Significant efforts are required to ensure that the region joins the rest of the O SCE in recognizing the right to access to inform ation for the public and the m edia. 260

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The First South Caucasus Media Conference took place in Tbilisi on 25-26 O ctober 2004. The topics discussed w ere sim ilar as in Dushanbe. There w as also a discussion of the developm ents in these three countries on libel. Earlier this year Georgia becam e one of the five O SCE participating States decrim inalizing defam ation. Arm enia also took an im portant step by reducing crim inal penalties for libel. The process of elaboration of a new law regulating defam ation, libel issues and protection of honour and dignity has started in Azerbaijan. Access to official inform ation rem ains a m ajor problem area for the m edia in the three South Caucasus States. Am ong the m ain obstacles the journalists highlighted w ere: the poor im plem entation of existing law s on access to inform ation; excessive state secretsâ&#x20AC;&#x2122; law s and crim inal penalties for their violations; lack of public aw areness of legal rights to access to inform ation; and lack of professionalism am ong the m edia. A thorough report, com m issioned by m y O ffice and researched by m edia NGO ARTICLE 19, analysed the linkages betw een freedom of m edia and freedom of inform ation. The report includes dozens of cases in the three South Caucasus countries from the past year w here m edia has been denied access. The report w ill be published in the near future. Both conferences ended w ith Declarations agreed to by the participants and recom m ending action. Publications w ith all the statem ents by the participants w ill be published as a follow -up. The Baku legal round table, that took place on 27 O ctober 2004, brought together parliam entarians, judges and international and local experts on legislative processes related to libel and freedom of inform ation. The event w as organized jointly w ith the Council of Europe. Since Azerbaijan is in the process of am ending and adopting legislation, the m ain focus of discussion w as the tw o legal review s com m issioned by our tw o organizations earlier in the fall. As a participating State in both the O SCE and Council of Europe, Azerbaijan is bringing its legislation in line w ith international com m itm ents and standards. Therefore the exchange of view s betw een local and international experts w as an im portant elem ent in this process. Apart from the Baku round table, the legal fund has presented seven legal review s (tw o com m issioned jointly w ith the Council of Europe) to Albania at the request of the Prim e Minister, the Parliam entary Media Com m ittee and the National Council of Radio and Television. I w as glad to hear that the Albanian Parliam ent has postponed a final vote in order to incorporate the am endm ents proposed REPO RTS AND STATEMENTS

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by us. The O SCE Presence in Albania is closely w orking together w ith the local authorities on follow -up and further expertise. All the legal review s can be found on our w eb page. Internet Cookbook. As you know, m y O ffice has been actively involved in Internet issues. Today I’m glad to present to you our latest publication, The M edia Freedom Internet Cookbook. This 270 page book com bines concrete recom m endations – the Recipes – of the O SCE Representative on Freedom of the Media w ith background papers by cutting-edge experts grouped in six different chapters from “Legislation & Jurisdiction” to “Education” and “Hate Speech”. • The recom m endations in the first part of the book provide guidelines for O SCE participating States. To all freedom -loving Internet users, legislators am ong them , w e offer recipes on how to preserve the freedom of the Internet at a tim e w hen the Internet is facing to be controlled, conditioned, and curtailed. • The second part of the Cookbook com prises papers by outside experts, w hich provide background inform ation and insights into current debates about the Internet and also include exam ples of successful initiatives and best practices. For instance: 1. What m edia freedom s can get lost in the hands of uninform ed or uncaring legislators; 2. How good intentions by uninform ed or uncaring legislators result only in loss of freedom rather than helping to fight “bad content”; 3. What are the unexplored non-regulatory w ays of fighting “bad content” that use the potential of the Internet itself and that of com m unities that create and consum e m edia on the Internet. I hope you w ill enjoy reading it. O SCE Safer Internet Access Policy. The second topic I w ould like to raise regarding the Internet is a less heart-w arm ing one, although after I have discussed this issue w ith our Secretary General the problem I am confident w ill be resolved in the near future. I have been w arning our participating States against the use of filtering and blocking softw are advocating rather education over restriction. Now, w hat w e w ere preaching to the outside w orld suddenly hit hom e. I learned that the com petent IT departm ent of the O SCE introduced the Safer Internet Access policy for all O SCE Vienna 262

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based staff effective 1 Novem ber. But besides the obviously m eaningful security enhancem ents (filtering viruses, prohibiting large uploads, etc.) tw o item s included in this package raised m y concern: • Blocking of any stream ing m edia content (video, radio broadcast); • Content-based filtering of w ebsites. Both these points hinder the access to valuable content, unlike the stability and security m easures for the Secretariat’s netw ork. The first issue (stream ing m edia) seem s to be a technical problem because of large am ounts of bandw idth used for these applications. Nevertheless, the blocking of this type of content is hindering m y w ork directly and I cannot im agine that it w ould not harm the w ork of other O SCE institutions. It is sim ply im possible to get all new s that is available. • Som e exam ples of stream ing m edia m ade inaccessible: m y recent video interview for State Russian TV RTR; m y recent radio interview to Voice of America; a report on Am nesty International’s assessm ent of the hum an rights situation in one of our participating States; the ARTICLE 19 Handbook on Freedom of Expression. The second issue, filtering of w ebsites, is even m ore troubling, because it directly targets content. My O ffice is cam paigning against filtering and blocking because it is endangering freedom of expression. Instead, at m any conferences and in publications, I am advocating “m ore speech”, better education, plurality of opinions in the com petition of ideas, etc. • Som e exam ples again: legal w ebsites, if they deal w ith how to fight child pornography on the Internet; these include the w ebsites of several universities. The m easures by the O SCE show that filtering indeed is over-blocking, and at the sam e tim e under-restrictive. Websites of organizations that fight child pornography are filtered, w hereas access to obviously obscene sites is still possible. And even if the O SCE IT Section – the w ork of w hich I appreciate – is offering the possibility to report to them falsely blocked content, this still hinders our activities because of delays and additional w orkload; hinders online research; and, m ost of all, does not respect the principles of autonom ous and responsible use of new technologies. O DIHR has inform ed m y O ffice that they do not filter content. I suggest that the O SCE IT should not hinder the free access to the Internet as long as it does not concern security issues directly. The REPO RTS AND STATEMENTS

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decision about w hat is “obscene” or unw anted should be left to the user. This is w hat I advocate in the region and this is w hat I w ill advocate at hom e here, in the O SCE. K osovo. After I issued m y report on the Role of the M edia during the M arch Events in Kosovo, I appointed a special representative of m y O ffice there to help im plem ent the recom m endations I presented to the Perm anent Council this April. I am pleased to inform you, that our recom m endations have been taken into account and m ost of them are in the process of being im plem ented. While a lot rem ains to be done, significant progress has been m ade since the tragic events in March, w hen the m edia in Kosovo displayed an unacceptable degree of sensationalism , bias and hate speech. The report issued by m y O ffice, and a sim ilar report drafted by the Tem porary Media Com m issioner in Kosovo, did contribute to a debate on journalistic standards and ethics in Kosovo and helped initiate a range of reform s. Let m e outline a few im portant achievem ents in line w ith m y recom m endations. Co-ordinated by the O SCE Mission, a reform process w as started by the Board at the public broadcaster, RTK, w hich opened itself to outside advice and training w ith regard to its new s program m ing. RTK w ill, how ever, need m ore thorough reform s in order to strengthen its accountability and repair the existing deficiencies and shortcom ings. The m edia, including RTK, have acknow ledged their m istakes during the March events and have pledged to install safeguards in cases of crisis reporting that should prevent sim ilar situations. The adoption of m edia legislation and the creation of a m edia landscape free of hate speech are goals that have been prioritized w ithin the fram ew ork of the “Standards for Kosovo” policy (Standard O ne, Goals 19, 20 and 21). The Assem bly m ust adopt the Law on the Establishm ent of the Independent Media Com m ission and a law to establish RTK as a public broadcaster ahead of the m id-2005 Standards review. With regard to self-regulatory aspects of the m edia in Kosovo, progress has been m ade as w ell. A Draft Press Code for Kosovo is in place and w ill be soon put into effect. O MiK is also in the process of shifting priorities from projects that support individual journalists and m edia to interventions that 264

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focus on the creation of an environm ent in w hich journalists and m edia can operate freely and in a responsible m anner. My representative in Kosovo has been w orking closely w ith O MiKâ&#x20AC;&#x2122;s Departm ent for Dem ocratization and the Tem porary Media Com m issioner on these subjects and I w ould like to thank both, the O SCE Mission and the TMC, for their excellent co-operation. Also, thanks again to the UK and to the O SCE Mission for the financial support for this project.

<http://www.osce.org/documents/rfm/2004/12/3994_en.pdf>

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Assessment Visit to Mo ldo va O bservatio ns and Reco mmendatio ns 16 Decem ber 2004

The O SCE Representative on Freedom of the Media Miklós Haraszti, accom panied by Adviser Alexander Ivanko, and Research O fficer Ilia Dohel, visited Chisinau, Moldova, from 18 to 21 O ctober 2004. This w as the Representative’s second assessm ent visit since taking over his post. The trip w as m ade at the invitation of the Governm ent of Moldova and w as organized by the Ministry for Foreign Affairs and by the O SCE Mission to Moldova. The purpose of the trip w as to assess the current state of m edia freedom in the country and to provide the authorities w ith recom m endations. The Representative appreciates the co-operative approach of Moldova, and he has prepared this Report in the sam e spirit. The Report w as prepared w ith the assistance of the O SCE Mission to Moldova. Miklós Haraszti m et w ith governm ent officials, parliam entarians, journalists, and representatives of non-governm ental organizations. Am ong those he had talks w ith w ere, in order of the m eetings: • Foreign Minister Andrei Stratan; • Minister for Reintegration Vasile Sova; • Form er Prim e Minister and Parliam ent faction leader Dum itru Braghis; • Leader of the faction of the Christian Dem ocratic Peoples Party Iurie Rosca; • Chairm an of the Audio-visual Co-ordination Council Ion Mihailo; • Speaker of Parliam ent Eugenia O stapciuc; • Head of the Parliam ent Com m ission on Culture and Media Vladim ir Dragom ir; • Leader of the Com m unist Party faction Victor Stepaniuc; • Meetings w ith Parliam entarians; • Meetings w ith journalists, editors and m anagers from different m edia outlets, including form er and active journalists, the Board Chairm an, and the CEO s of the TV and radio branches at Tele-radio M oldova (TRM ); 266

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• Meetings w ith several NGO s, including the Com m ittee for the Defence of Hum an and Professional Dignity (CADUP), and the Independent Journalism Centre, Union of Journalists; • Meetings w ith journalists from Transdniestria.

Po sitive D evelo pments – Pluralism and D ecriminalized Libel There are a number o f estimable develo pments in the situatio n o f the Mo ldo van media. O verall, m edia pluralism is highly developed in Moldova, both in term s of quantity of m edia outlets and of different view s that are represented (albeit diversity on both counts is m ore present in the print press than in the broadcast m edia). Politicians of all ranks are regularly criticized in the m edia; independent TV and radio stations are very outspoken in their com m ents on the authorities. There is also an open debate regarding the developm ent of the m edia itself; this debate w as described by the Foreign Minister as “transparent”. New spapers that support the Transdniestrian separatist authorities are freely distributed in Moldova. Moldova, like few other O SCE participating States, has decrim inalized libel. The O ffice of the Representative has been advocating libel decrim inalization in the O SCE region for alm ost four years. Moldova w as also one of the first countries in the region to transform its state broadcaster into a public service one. Nevertheless, m ost interlocutors agreed that there w ere several outstanding m edia problem s that needed to be dealt w ith in the foreseeable future. Som e of the shortcom ings, as parliam entarian opposition leader Braghis put it “w ere the result of a grow ing dem ocracy.” In his view the O SCE needed to get m ore involved in m edia m atters. The Foreign Minister also stated that “Moldova has som e shortcom ings in the m edia field, but these are not intentional. O ther European States also have shortcom ings. We do not w ant to take a w rong w ay and that is w hy w e are grateful for any recom m endations com ing from the O SCE, and other international organizations.” The purpose of this report is to offer such recom m endations based on observations m ade during the visit.

The General State o f Bro adcasting There can be no true pluralism w hen there are no co mpeting do mestic natio nw ide channels. In this situatio n, a transparent tender is needed fo r ano ther natio nw ide frequency. Currently, REPO RTS AND STATEMENTS

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there are only three nationw ide broadcasters in Moldova, and only one of them – the public com pany Teleradio M oldova (TRM ) – is a Moldovan channel in term s of content. The other tw o channels rebroadcast program m ing from neighbouring countries: Rom ania and the Russian Federation. It seem s to be clear that a fourth nationw ide frequency exists; how ever the issuing of this frequency w as stopped by the licensing authority in 2002. The tender for the third nationw ide channel – the one rebroadcasting a Russian netw ork – w as announced on 15 O ctober 2004; how ever, a tender for the fourth has not been reannounced. For additional inform ation on problem s of transparency in licensing, see the chapter on the Audio-Visual Council.

The Situatio n aro und TRM To o much Go vernment, to o few o ther vo ices TRM, altho ugh legally transfo rmed fro m state bro adcaster into an auto no mo us public service institutio n, in reality co ntinues to tilt to w ards the Go vernment. Mo st o f the po litical pro gramming is repo rted to be new s o n and by the ruling party. In this situatio n, w hen TRM is the o nly do mestic natio nw ide bro adcaster, balanced co verage o f po litical events is even mo re impo rtant. TRM still has to live up to its co mmitments as a public service bro adcaster. No content m onitoring is conducted by TRM itself despite the fact that it is prescribed by the new Law on the National Public Broadcasting Com pany Teleradio Moldova. The explanation given by TRM m anagem ent w as a lack of resources to produce the needed tapes. But in fact it w as the Supervisory Board (SB) w hich at least should have tried to enforce such m onitoring. The SB, explaining their lack of concern for m onitoring, said that in the initial period w hen TRM has only started its public w ay of functioning, it w ould have been m isleading to produce any m onitoring. As a result, only the NGO com m unity did such m onitoring. Their findings w ere heavily disputed by the TRM m anagem ent, the SB, and ruling party officials. It is true that the NGO m onitoring w as done on a quantitative basis. The “stopw atch” m ethod is unquestionably crude, and cannot reveal the nuances of program m ing. Still, this m ethod is good enough, and the results w ere overw helm ing enough to show that the new s coverage at TRM since the transform ation w as disproportionately about the Governm ent and by the Governm ent. 268

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Labo ur D ispute Bo th TRM management and CAD UP that represents jo urnalists w ho w ere no t hired as part o f the transfo rmatio n pro cess fro m state to public bro adcaster sho uld agree o n a co mpro mise thro ugh nego tiatio ns. The O SCE Representative and his staff had several m eetings w ith TRM m anagem ent and w ith representatives of form er TRM journalists w ho w ere not re-hired after TRM w as officially transform ed from a state to a public broadcaster. Alexander Ivanko observed the w ork of the Conciliation Com m ittee of Teleradio Moldova that w as established to deal w ith this labour dispute.

Backgro und In February 2002 strikes and protests against alleged censorship at TRM supported by m ore than 300 TRM em ployees started a debate in Moldova on the need to transform TRM into a public broadcaster. The required legal fram ew ork w as established under Council of Europe guidance. The Law on the National Public Broadcasting Com pany Teleradio Moldova w as adopted by Parliam ent on 26 July 2002. The Law w as revised on 13 March 2003 after it w as criticized by the Council of Europe. O n 13 Novem ber 2003 the Law w as changed again; this tim e w ith the aim of liquidating the previous state broadcaster. This m eant that the new ly established public com pany w ould not be under any obligation to hire all of the staff from the state broadcaster. According to several sources, there w as fear am ong TRM staff that the selection process w ould m ake redundant those em ployees w ho had been m ost active during the February 2002 protests and w ho had cam paigned for the transform ation of TRM into an independent public broadcaster. A selection com m ission form ed by three m em bers proposed by the Adm inistrative Board, three m em bers proposed by the Supervisory Board and one m em ber elected by the staff of TRM w as established on 30 April 2004. The com m ission selected new staff by 7 August 2004. 907 persons w ere offered contracts, 890 signed them . 140 positions are still vacant. The selection com m ission therefore has not concluded its w ork. Approxim ately 190 staff m em bers have been laid off. After the selection results for the new s departm ents had been announced on 27 July, discontent am ong TRM em ployees about the w ay the process w as conducted turned into public protests. O n 27 July a group of TRM em ployees founded the Com m ittee for Protection of REPO RTS AND STATEMENTS

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Hum an and Professional Dignity and occupied the room in w hich the selection com m ission held its m eetings. In response, TRM m anagem ent suspended the contracts of 19 em ployees and on 30 July the police rem oved the protestors from the building. These dem onstrations, at one point involving thousands of people, started in protest against the results of the selection process. The m ain dem and w as therefore to rerun the process. This dem and w as later m odified to “returning to the situation before the selection procedure started.” The m odified dem and could be theoretically satisfied w ithout a rerun by offering contracts to all the 190 laid off staff. All interlocutors agreed that the situation around TRM w as the m ost pressing m edia issue in the country. All seem ed to agree that the only w ay to proceed w as through a negotiating process. As Foreign Minister Stratan put it: “We w ant the transformation of TRM to be done in a dem ocratic w ay.” Nevertheless, several questions should be raised. • The w hole selection process seem s to be m arred by lack of understanding of the dem ands of such a process. Although it is clear that som e of the staff w ould probably have to be m ade redundant, the selection criteria w ere not clearly defined, and the selection itself w as not transparent. Charges of political bias cannot be refuted given the lack of transparency in the selection process. • The attitude of the TRM m anagem ent, at least initially, w as not constructive and led to m assive protests and to a stalem ate that is still not resolved. • O n the other hand, CADUP, form ed originally to defend the rights of the laid off staff, started adding political dem ands to their original labour ones. In this situation, the O SCE Representative, together w ith the Head of the O SCE Mission in Moldova and the Special representative of the Secretary General of the Council of Europe suggested to the abovem entioned Conciliation Com m ittee that a new selection com m ission should be created according to the follow ing form ula: - Tw o m em bers of the selection com m ission to be appointed by the adm inistration of Teleradio M oldova; - Tw o m em bers of the com m ission to be appointed by CADUP; - Three m em bers of the com m ission to be appointed by consensus by the Conciliation Com m ission. Alternatively, one of these three m em bers could be a foreign expert, seconded by the O SCE or the Council of Europe. 270

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At tim e of w riting, this issue is still pending. The Conciliation Com m ission at TRM held only tw o m eetings in Novem ber. O n both sessions the com m ission discussed the joint proposal on a new selection com m ission, put forw ard on 21 O ctober by the O ffice of the Representative, the O SCE Mission and the Council of Europe. The Com m ission failed to com e to a decision concerning this joint proposal. Referring to a lack of progress in the w ork of the Com m ission and having accused TRM m anagem ent of “sim ulating a dialogue” the representatives of the protesting journalists w ithdrew from the Conciliation Com m ission on 25 Novem ber. TRM Superviso ry Bo ard The current TRM Superviso ry Bo ard (SB), altho ugh in theo ry its majo rity is fo rmed by civil so ciety, do es no t represent the w ho le spectrum o f view s prevalent in so ciety, and in fact allo w s fo r po litical o ne-sidedness. The current law sho uld be changed to allo w fo r a different co mpo sitio n o f the SB. Several opposition parliam entarians, journalists and NGO s com plained about the current set-up of the SB w hich includes tw o representatives from Parliam ent (one from the opposition), tw o from Governm ent, tw o appointed by the President, and nine from different organizations. How ever, the President, the Governm ent and Parliam ent are controlled by one party, and so are the m ajority of civil organizations represented on the board. The leader of the Com m unist Party faction Victor Stepaniuc acknow ledged that not all civil society w as represented on the board, but only “the m ain civic organizations” w hich leaves open the question of w ho and, m ore im portantly, how defines an organization as being “m ain”. In the highly politicized clim ate in Moldova a highly politicized SB is seen as underm ining the credibility of the public broadcaster. O ne of the proposals com ing from opposition leader Braghis w ould provide for a 12 m em ber SB, six people from the ruling party, six from the opposition, and the board w orking strictly on a consensus basis. Although this idea m ay sound appealing it m ight also lead to a stalem ate w here the board w ould not be able to agree on anything leaving TRM m anagem ent w ithout any supervisory control. The O SCE and the Council of Europe should be encouraged to com e up w ith a proposal on the structure of the SB that w ould have the approval of all political sides in Moldova. Several proposals, especially the one prepared by the Association of Electronic Media (APEL), should be carefully analysed.

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The Audio -Visual Co -o rdinatio n Co uncil Tenders fo r frequency allo catio ns are o ffered at very sho rt no tice, and do no t pro vide eno ugh time fo r po tential applicants to prepare all the necessary do cuments. The co mpo sitio n o f the Co uncil do es no t guarantee its o bjectivity. Also , there is a lack o f transparency in the decisio n-making pro cess regarding the allo catio n o f frequencies. Com plaints about political bias in frequency allocation could not be substantiated. But w hen looking into these com plaints, the Representative established that the process allow s for subjectivity w hen evaluating and voting on tenders for frequency allocation. Broadcasting licences are allocated by the Council. In a system that can only be described as “tw o-headed”, the actual frequencies to be used by the licensee are provided to the Council by the Ministry of Com m unications. As one senior official said: “We do not know w hen these frequencies becom e available.” The Council, w hich consists of nine people, is appointed respectively by the Governm ent, the President, and the Parliam ent. In a situation like today’s, w hen the m ajority in all the executive and legislative branches are controlled by one party, this system leads to total political control of the Council. Several interlocutors com plained that they did not have any trust in the Council’s objectivity w hen issuing licences for channels. It should also be noted that the tender for the very im portant fourth nationw ide channel w as not reissued after years w hen there w as absolutely no m ovem ent on this m atter. O n the other hand, the tender for the third nationw ide netw ork, the licence of w hich w as running out, had been issued on 45 days notice, and w as only announced in three new spapers in a sm all print advertisem ent. To ensure the independence of the Council, the election procedure should not be politically oriented, and should focus on em ploying as m em bers of the Council individuals w ho are reputable experts in the broadcasting field. The m ethod of frequency allocation has to be changed. O nly one agency should be in charge of both establishing and allocating the frequencies. This w ould correct the current “tw o-headed” system w hen the Council is at the m ercy of the Ministry, not know ing w hen (and w hy) a frequency m ight be offered for tender.

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Natio nal Register fo r Perio dicals Parliamentarians sho uld be urged to refuse to pass a law that pro vides fo r the re-registratio n o f new spapers. Leader of the Com m unist Party faction Victor Stepaniuc inform ed the O SCE Representative that Parliam ent plans to pass a law that w ould require all print m edia to re-register. He explained that the reason for this new procedure w ould be “to distinguish pure com m ercial ventures from publishing ones.” Several journalists and editors have voiced their concerns that such a procedure m ight lead to the “w eeding out” of opposition new spapers. The Representative questioned the m ere reason for such a procedure and underlined that it w as not the job of any state agency to “distinguish” betw een different m edia outlets. He called on Parliam entary Speaker Eugenia O stapciuc, the leaders of the Com m unist m ajority faction, and the Com m ission for Mass Media not to go ahead w ith plans to force periodicals to re-register as non-profit organizations. The distinction betw een com m ercial and journalistic activities is difficult and such a m ove m ight negatively affect the econom ic base of a new spaper. Such a m ove m ight be perceived as politically m otivated, especially in a pre-election period.

The Print Press in Mo ldo va The Representative cannot recommend a forced privatization of all government-ow ned new spapers although the concept of a taxpayer supported print media is incompatible w ith advanced democracy. How ever, as a minimum requirement, the number of these new spapers should not grow, and there should be no administrative or advertising discrimination against the non-governmental print press. There is no need to re-establish the so-called rayonnie gazeti, that is, the district new spapers paid for by local government. Most politicians in Moldova agree that there w as no censorship in the print m edia. But they also agree that there are no truly independent new spapers or m agazines. As opposition leader Braghis put it “The print press is free, how ever since they depend on money, and the advertising m arket is too sm all in Moldova, there are no independent new spapers in the country… All are influenced by political figures.” Governm ent new spapers also exist in Moldova, financed through the budget and thus putting at a com petitive disadvantage REPO RTS AND STATEMENTS

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the print press that is privately ow ned. Several journalists com plained that advertising agencies w ere â&#x20AC;&#x153;encouragedâ&#x20AC;? to direct ads to the governm ent m edia. Also, governm ent m edia benefited from not paying rent and from a m onopoly on distribution by Posta M oldova. At the local level, authorities started re-establishing the old pre-dem ocracy practice of the so-called rayonnie gazeti (local new spapers) that are funded from the local budget. The fact of a governm ent ow ning a new spaper is a questionable one. It is neither com patible w ith accountable dem ocracy, nor w ith independent journalism , nor w ith m arket reform . This practice should be in the long-term abolished.

Civil Libel Cases Civil defamatio n penalties remain high and are o ften misused by public o fficials. A reaso nable ceiling co uld be intro duced fo r such penalties. Co urts sho uld expo se public figures to a higher degree o f criticism, as endo rsed by relevant rulings o f the Euro pean Co urt o f Human Rights (ECtHR). Although Moldova decrim inalized libel, civil defam ation suits rem ain a problem for privately ow ned new spapers. The am ount of dam age that a plaintiff can claim for defam ation is not lim ited in Moldova. Excessive sum s for m oral dam ages cannot be paid by m ost new spapers that are not financed from the state budget. Each year Moldovan courts adjudicate approxim ately 600 civil defam ation cases. A considerable num ber of these cases are filed by public officials. A new spaper w as recently sentenced to a 150,000 euro fine that has not been paid yet. A reasonable ceiling should be introduced for such penalties. When review ing civil defam ation cases filed by public officials, courts, as endorsed by the ECtHR, m ust observe the principle of offering less protection to the latter than to private individuals.

Media in Transdniestria The Transdniestrian media are under severe pressure and internatio nal o rganizatio ns sho uld define w ays o n ho w to try to help independent jo urnalists in the regio n. The Representative, as part of his trip to Moldova, also planned to visit Transdniestria w here he had arranged to have several m eetings w ith journalists from the region. O n his behalf, the O SCE Mis274

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sion in Moldova approached the so-called “Transdniestrian Ministry of Foreign Affairs” requesting also m eetings w ith the authorities. A day before the planned visit, the Mission received a letter from “Deputy Minister” V. Yankovsky inform ing that according to inform ation received from “the Ministry of State Security, the O SCE Representative on Freedom of the Media Miklos Haraszti plans to visit Transdniestria on 21 O ctober.” The letter holds that because “the m eetings w ould exclude objectivity and a healthy debate w e do not consider the above-m entioned visit advisable.” Nevertheless, a m eeting w as organized w ith independent Transdniestrian journalists in Chisinau. They described an atm osphere of repression that prevailed in the local m edia. The m ajority of the m edia w as published by the authorities. According to a leading local independent editor Grigoriy Valovoi, only 10-15 per cent of all publications could be considered non-governm ental. There w as alm ost no debate on any issues of public interest. The only existing independent new spapers are frequently harassed, their print runs arrested, they are sued for libel, their staff often threatened. A com plete governm ent m onopoly exists in the electronic m edia. According to Transdniestrian journalists, all contacts w ith Moldovan reporters are strictly forbidden. Recently, broadcasts of the M oldova 1 channel have been suspended in Transdniestria. Journalists from both Moldova proper and Transdniestria suggested that an exchange of program m es, inform ation, etc., w ould be beneficial but w arned that these exchanges w ould probably be curtailed by the Transdniestrian authorities. Backgro und The official new s agency O lvia Press and official new spapers such as Pridnestrov’e serve only as propaganda tools of the ruling authorities. O fficial Transdniestrian television and radio stations are also under tight control by the so-called “Ministry of Inform ation”. The private TV Com pany TCB (TSV), w hich belongs to a private entity Sheriff, is also close to the region’s leadership. Several journalists w ho w ere critical tow ards the authorities decided to leave the region in the beginning and the m iddle of the 1990s. In 2004 the only media outlets w hich have managed to establish a certain independence are Profsouyznye Vesti, Novaja Gazeta, Dobriy Den’ from Ribnita and Celovek i ego prava from Tiraspol. The ow ners of Novaja Gazeta plan to establish an independent radio station.

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N ovaja Gazeta, w hich w as founded in 1998 and w hich is the m ost prom inent independent paper in the region, has faced pressure from the Transdniestrian authorities from the outset. In January 1999 the entire print run of N ovaja Gazeta w as confiscated by Transdniestrian security services and the paper w as forced to close dow n. The paper w on a court case and restarted in August 1999, but the print run w as confiscated again. The new spaper then started publishing under a new nam e and w ith a sm aller print run, but rem ained under pressure. In March 2000 the print run of this new Samaja N ovaja Gazeta w as confiscated. The paper w as eventually able to operate under its original nam e later that year, but continued to face pressure. O n 20 April 2004 the editors of N ovaja Gazeta w ere questioned by an investigator from the Transdniestrian Security Service. The subject of the interrogation w as an article on freedom of consciousness published in the 11 February 2004 edition of N ovaja Gazeta. The article w as apparently critical to a leading official responsible for religion in the region. The Ribnita based new spaper Dobriy Den’ faced several libel cases in 2000, 2003 and 2004 that threatened its existence. All libel charges w ere m ade by local businessm en close to the authorities and the city council. How ever, no court decisions w ere enforced. After the “Suprem e Court of Transdniestria” upheld earlier court decisions to liquidate the left w ing opposition m ovem ent “Pow er to the People – for Social Justice”, the new spaper Glas N aroda lost its legal “ow ner” and w as forced to cease publication. The leader of Pow er to the People Alexander Radcenko m anaged eventually to start a new paper, Celovek i ego prava. How ever, the print run of this new spaper is m uch sm aller and Radcenko him self as w ell as Celovek i ego prava are under constant pressure from Transdniestrian authorities. Journalists from outside Transdniestria can operate in the region only w hen registered w ith the so-called Ministry of Inform ation in advance. In case they operate w ithout registration they face the threat of arrest. In 2003 Dutch and US journalists had been detained by the Transdniestrian m ilitia and on 6 Septem ber 2004 a cam eram an from TV M oldova 1 w as arrested and convicted to a 15 day prison term for film ing the takeover of the Moldovan railw ay station in Benderi by Transdniestrian m ilitia.

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Reco mmendatio ns • Moldova should be encouraged, both regionally and am ong all O SCE participating States, to publicize the fact that it is one of the few countries in the w orld that has decrim inalized libel. • There can be no true pluralism w hen there are no com peting dom estic nationw ide channels. In this situation, a transparent tender is needed for another nationw ide frequency. • TRM , although legally has been transform ed from state broadcaster into an autonom ous public service institution, in reality continues to tilt tow ards the Governm ent. Most of the political program m ing is reported to be new s on and by the ruling party. In this situation, w hen TRM is the only dom estic nationw ide broadcaster, balanced coverage of political events is even m ore im portant. TRM still has to live up to its com m itm ents as a public service broadcaster. • Both TRM m anagem ent and CADUP that represents journalists w ho w ere not hired as part of the transform ation process from state to public broadcaster should agree on a com prom ise through negotiations. • A new TRM selection com m ission should be created. • The current TRM Supervisory Board (SB), although in theory its m ajority is form ed by civil society, does not represent the w hole spectrum of view s prevalent in society, and in fact allow s for political one-sidedness. The current law should be changed to allow for a different com position of the SB. • Tenders for frequency allocations are offered at very short notice, and do not provide enough tim e for potential applicants to prepare all the necessary docum ents. The com position of the Council does not guarantee its objectivity. Also, there is a lack of transparency in the decision process regarding the allocation of frequencies. • Parliam entarians should be urged to refuse to pass a law that provides for the re-registration of new spapers. • The Representative cannot recom m end a forced privatization of all governm ent-ow ned new spapers although the concept of a taxpayer supported print m edia is incom patible w ith advanced dem ocracy. How ever, as a m inim um requirem ent, the num ber of these new spapers should not grow, and there should be no adm inistrative or advertising discrim ination against the non-governm ental REPO RTS AND STATEMENTS

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print press. There is no need to re-establish the so-called rayonnie gazeti, that is, the district new spapers paid for by local governm ent. • Civil defam ation penalties rem ain high and are often m isused by public officials. A reasonable ceiling could be introduced for such penalties. Courts should expose public figures to a higher degree of criticism , as endorsed by relevant rulings of the European Court of Hum an Rights (ECtHR). • The Transdniestrian m edia are under severe pressure and international organizations should find w ays to try to help independent journalists in the region.

<http://www.osce.org/documents/rfm/2004/12/3993_en.pdf>

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Internatio nal Mechanisms fo r Pro mo ting Freedo m o f Expressio n

JO INT D ECLARATIO N By the UN Special Rappo rteur o n Freedo m o f O pinio n and Expressio n, the O SCE Representative o n Freedo m o f the Media and the O AS Special Rappo rteur o n Freedo m o f Expressio n 6 Decem ber 2004

Having discussed these issues in London and virtually w ith the assistance of ARTICLE 19, Global Campaign for Free Expression; Recalling and reaffirming their Joint Declarations of 26 Novem ber 1999, 30 Novem ber 2000, 20 Novem ber 2001, 10 Decem ber 2002 and 18 Decem ber 2003; N oting the grow ing recognition of the key right to access inform ation held by public authorities (som etim es referred to as freedom of inform ation), including in authoritative international statem ents and declarations; Applauding the fact that a large num ber of countries, in all regions of the w orld, have adopted law s recognising a right to access inform ation and that the num ber of such countries is grow ing steadily; Recognizing the fundam ental im portance of access to inform ation to dem ocratic participation, to holding governm ents accountable and to controlling corruption, as w ell as to personal dignity and business efficiency; Condemning attem pts by som e governm ents to lim it access to inform ation either by refusing to adopt access to inform ation law s or by adopting law s, w hich fail to conform to international standards in this area; Stressing the need for inform ational ‘safety valves’ such as protection of w histleblow ers and protection for the m edia and other actors w ho disclose inform ation in the public interest; Welcoming the com m itm ent of the African Com m ission on Hum an and Peoples’ Rights to adopt a regional m echanism to prom ote the right to freedom of expression and noting the need for specialised m echanism s to prom ote freedom of expression in every region of the w orld; Adopt, on 6 Decem ber 2004, the follow ing Declaration: REPO RTS AND STATEMENTS

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O n Access to Info rmatio n • The right to access inform ation held by public authorities is a fundam ental hum an right w hich should be given effect at the national level through com prehensive legislation (for exam ple Freedom of Inform ation Acts) based on the principle of m axim um disclosure, establishing a presum ption that all inform ation is accessible subject only to a narrow system of exceptions. • Public authorities should be required to publish pro-actively, even in the absence of a request, a range of inform ation of public interest. System s should be put in place to increase, over tim e, the am ount of inform ation subject to such routine disclosure. • Access to inform ation is a citizens’ right. As a result, the procedures for accessing inform ation should be sim ple, rapid and free or low -cost. • The right of access should be subject to a narrow, carefully tailored system of exceptions to protect overriding public and private interests, including privacy. Exceptions should apply only w here there is a risk of substantial harm to the protected interest and w here that harm is greater than the overall public interest in having access to the inform ation. The burden should be on the public authority seeking to deny access to show that the inform ation falls w ithin the scope of the system of exceptions. • Public authorities should be required to m eet m inim um record m anagem ent standards. System s should be put in place to prom ote higher standards over tim e. • The access to inform ation law should, to the extent of any inconsistency, prevail over other legislation. • Those requesting inform ation should have the possibility to appeal any refusals to disclose to an independent body w ith full pow ers to investigate and resolve such com plaints. • National authorities should take active steps to address the culture of secrecy that still prevails in m any countries w ithin the public sector. This should include provision for sanctions for those w ho w ilfully obstruct access to inform ation. Steps should also be taken to prom ote broad public aw areness of the access to inform ation law. • Steps should be taken, including through the allocation of necessary resources and attention, to ensure effective im plem entation of access to inform ation legislation.

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O n Secrecy Legislatio n • Urgent steps should be taken to review and, as necessary, repeal or am end, legislation restricting access to inform ation to bring it into line w ith international standards in this area, including as reflected in this Joint Declaration. • Public authorities and their staff bear sole responsibility for protecting the confidentiality of legitim ately secret inform ation under their control. O ther individuals, including journalists and civil society representatives, should never be subject to liability for publishing or further disseminating this information, regardless of w hether or not it has been leaked to them, unless they committed fraud or another crime to obtain the inform ation. Crim inal law provisions that don’t restrict liability for the dissem ination of State secrets to those w ho are officially entitled to handle those secrets should be repealed or am ended. • Certain inform ation m ay legitim ately be secret on grounds of national security or protection of other overriding interests. How ever, secrecy law s should define national security precisely and indicate clearly the criteria w hich should be used in determ ining w hether or not inform ation can be declared secret, so as to prevent abuse of the label “secret” for purposes of preventing disclosure of information w hich is in the public interest. Secrecy law s should set out clearly w hich officials are entitled to classify docum ents as secret and should also set overall lim its on the length of tim e docum ents m ay rem ain secret. Such law s should be subject to public debate. • “Whistleblow ers” are individuals releasing confidential or secret inform ation although they are under an official or other obligation to m aintain confidentiality or secrecy. “Whistleblow ers” releasing inform ation on violations of the law, on w rongdoing by public bodies, on a serious threat to health, safety or the environm ent, or on a breach of hum an rights or hum anitarian law should be protected against legal, adm inistrative or em ploym ent-related sanctions if they act in “good faith”. Am beyi Ligabo UN Special Rapporteur on Freedom of O pinion and Expression Miklos Haraszti O SCE Representative on Freedom of the M edia Eduardo Bertoni O AS Special Rapporteur on Freedom of Expression REPO RTS AND STATEMENTS

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Pro jects 2004

Guaranteeing Media Freedo m o n the Internet â&#x20AC;&#x201C; Seminar w ith Experts in Vienna, 30 June 2004 The use of the Internet by journalists and as a journalistic m edium is increasing and w ill continue to do so. Consequently, the Internet is an im portant concern for the O ffice of the Representative on Freedom of the Media. The project Guaranteeing M edia Freedom on the Internet w ill help to evaluate the positions of participating States, to identify and develop strategies for the O ffice regarding the Internet and w ill inform other O SCE bodies and institutions about these strategies. An im portant challenge for the RFO M is to identify w ays in w hich to prevent hate speech and crim e w ithout restricting freedom of expression on the Internet. A num ber of conferences and docum ents have show n that there is an urgent need to counter hate speech on the Internet, but that there is a considerable degree of uncertainty about how to tackle this problem . This sem inar w ill evaluate the reasons for this uncertainty, provide detailed inform ation, draw up strategy proposals and highlight best practices to guarantee freedom of the m edia on the Internet for the future. This O ffice first addressed the Internet and m edia freedom at a w orkshop in Vienna in Novem ber 2002 and a tw o-day conference in Am sterdam in June 2003, w here the Am sterdam Recom m endations w ere issued. Results from the O SCE M eeting on the Relationship between Racist, Xenophobic and anti-Semitic Propaganda on the Internet and Hate Crimes in Paris w ill also be taken into account. Five experts w ho participated in the Am sterdam Conference w ill be invited to this sem inar to m ake a presentation about the current situation and answ er questions of delegates from the Perm anent Council, delegations and other O SCE institutions and fora. A Follow -up Strategy Conference in Am sterdam in August 2004 w ill then evaluate the inform ation acquired at this sem inar and propose strategies for the Representative on Freedom of the Media. Feedback from this conference w ill be com m unicated to the Perm anent Council and other O SCE fora to ensure a continuous exchange of inform ation. PRO JECTS 2004

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The Recipes Recom m endations of the O SCE Representative on Freedom of the Media from the 2004 Am sterdam Internet Conference

A. Legislatio n & Jurisdictio n • The source for all legislation regarding the Internet should be basic constitutional values, such as freedom of expression and its interpretation in jurisprudence. These values form the foundations for tailor-m ade and non-restrictive regulation w here necessary. New legislation should be lim ited to instances w here it is absolutely unavoidable and then only in the least restrictive w ay in term s of freedom of expression and users’ rights. • The Internet is not in itself a guarantor of freedom of opinion and expression. The Internet is prim arily a technology, a netw ork enabling com m unications. States and new corporate gatekeepers have increasingly developed policies and technologies of control w hich go beyond the legitim ate. Freedom of expression on the Internet m ust be protected, as elsew here, by the rule of law rather than relying on self-regulation or codes of conduct. There m ust be no prior censorship, arbitrary control or unjustified constraints on content, transm ission and dissem ination of inform ation. Pluralism of sources of inform ation and m edia m ust be safeguarded and prom oted including diversity am ong system s for inform ation retrieval. • Media presence on the Internet includes w ebsites of traditional m edia outlets, but it also includes w ebsites of individual desktop publishers w ho convey inform ation or express their view s through their ow n personal w ebsites. Som e of these sites enjoy significant readership; others do not. But w hen w e speak of guaranteeing media freedom , it m ust be clear that w e are not only speaking of freedom for traditional m edia outlets but also the freedom of the average citizen to voice his or her view s through his or her ow n w ebsite. • All Internet content should be subject to the legislation of the country of its origin (“upload rule”). Any legislation w hich im poses liability on an author or publisher for content w herever it is dow nloaded is too restrictive for freedom of expression. 284

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• Most Internet legislation is aim ed at the World Wide Web (WWW). Aw areness should be raised about the negative im pact this can have on different Internet-related com m unication system s such as chat environm ents, file transfer protocol servers (ftp) or peer-topeer netw orks, Usenet discussion groups, audio and video stream s (including live sound and im age transm issions), and finally the ubiquitous e-m ail com m unications. WWW content represents only a fraction of the w hole of the Internet and different levels of privacy for different form s of com m unications m ust be observed. A provider m ust not be held responsible for the m ere conduit or hosting of content. • Search engines em body the core concept of the Internet: global accessibility and connectivity of content. Filtering or lim iting their content searches w ould betray their basic m ission w hich is to deliver com prehensive and reliable results. Autom ated search engines should not filter, and m ust not be held responsible for the content of the results they produce.

B. Self-regulatio n, Co -regulatio n, State Regulatio n Regulation • Regulation of the Internet should be lim ited to fields w here it is unavoidable. Preferably the Internet should be seen as a space that w orks best autonom ously and w ithout any intervention. If regulation appears unavoidable, it should be applied according to the principle of subsidiarity, m eaning that regulation should be as close to the source of trouble as possible – close both in term s of geography and com petence. Within regulatory and co-regulatory bodies, transparency, accountability and the right to appeal should be observed to at least the sam e degree as in classic m edia. • Procedures and patterns of behaviour have evolved among users of the Internet. “Netiquette” w as the first informal code of conduct that w as not developed by law makers or industry representatives but users w ho w anted to utilize the Net for themselves in a civilized w ay. This logic should be extended and made popular among all Internet users. It should also serve as a blueprint for other forms of regulation. • When structures or institutions for Internet regulation are being designed they should follow the m ulti-stakeholder approach of governance that includes “governors” from different segm ents of PRO JECTS 2004

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society, geographical regions and genders, representatives from governm ents, NGO s, industry, users and citizens, etc. No sector should be allow ed to dom inate and the overall strategy should be based on com prom ise. Self-regulation • Defending values of free expression should becom e a priority of global public policy. The Internet is based on technical designs that are m ostly decided upon by hardw are and softw are com panies, not bodies of governm ent or governance. The technical architecture of the Web m ust reflect values like openness, prom otion of progress and know ledge, and easy access. It should also strengthen the intellectual com m ons and protect the public dom ain. Protecting these features and developing the courage to counteract any trends that could lead to the m onopolization of Internet activities m ust be central tasks of any regulatory action. • The Internet is not just threatened by certain state activities; it also faces the danger of “privatized governance”. This occurs w hen a few industrial actors becom e so pow erful that they are able to take over the regulatory process and define the rules. Diversity and pluralism as values do not just refer to the content of the Internet; they are also values of utm ost im portance in the selection of regulators. • Industrial “self-regulation” has an ambivalent and tense relationship w ith freedom of expression. It should be avoided because it tends to be non-transparent and there is also the risk of it being utilized for hidden business purposes. Because self-regulatory institutions are not public bodies, they may be less accountable and there may be less protection of fundamental rights than provided by the rule of law. • Private bodies m ust not decide on the legality or illegality of content. This is the duty of courts w ith transparent m echanism s of appeal and accountability. The right to “put back” content after rem oval by private bodies should be regarded as a policy issue. Regulatory Schemes • Regulatory schem es m ust be able to com m and public confidence. There m ust be a high degree of external consultation and all relevant stakeholders should be involved in the design and operation of schem es. As far as practicable, the operation and control of schem es should be separate from the institutions of the industry. 286

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• Regulatory schem es m ust be based on clear and intelligible statem ents of principles and m easurable standards – usually in the form of a code – w hich address real consum er and user concerns. Reasons for interventions m ust originate from these objectives and intended outcom es should be identified. Schem es m ust be w ell publicized, w ith m axim um education and inform ation directed at users and publishers. Schem es m ust be regularly review ed and updated in the light of changing circum stances and expectations. Filtering, Labelling and Blocking • In a m odern dem ocratic and civil society citizens should be allow ed to decide for them selves w hat they w ant to access on the Internet. The right to dissem inate and to receive inform ation is a basic hum an right. State enforced m echanism s for filtering, labelling or blocking content are not acceptable. • Unlike in television there is little future in filtering system s based on a rating system . It is highly unlikely that such proposed m easures w ill in the long-term result in a safe Internet environm ent as the rating and classification of all inform ation on the Internet is not feasible. Even if filtering technology is applied to the WWW, it is not clear w hat sort of content the regulators intend to rate. In m ost cases, the targeted category of Internet content is not illegal and rem ains w ell w ithin the lim its of legality. At the sam e tim e the rating of content is in itself a threat to free expression on the Internet. • Fam ily-based filtering and blocking softw are only w orks w ell if parents also discuss Internet content and habits w ith their children and update the filter regularly. If this is not the case, filtering softw are is not a solution. • Another dow nside of relying on such technologies is that these system s are defective and in m ost cases result in the exclusion of socially useful w ebsites and inform ation. O riginally prom oted as technological alternatives that w ould prevent the enactm ent of national law s regulating Internet speech, filtering and rating system s have been show n to pose their ow n significant threats to free expression. When closely scrutinized, these system s should be view ed m ore realistically as fundam ental architectural changes that m ay, in fact, facilitate the suppression of speech far m ore effectively than national law s alone ever could. PRO JECTS 2004

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• Rating and filtering system s w ith blocking capabilities enable prelim inary censorship and could allow repressive regim es to block Internet content, or such regim es could m ake the use of these tools m andatory. Law s or other m easures prohibiting speech m otivated by racist, xenophobic, anti-Sem itic, or other related bias can be enforced in a discrim inatory or selective m anner or m isused as a m eans of silencing governm ent critics and suppressing political dissent. If the duty of rating w ere handed to third parties, this w ould be problem atic for freedom of speech. Furtherm ore, as there are few third-party rating products currently available, the potential for arbitrary censorship increases.

C. Hate Speech o n the Internet • Any definition of hate speech should be narrow ly draw n. The differences betw een different sorts of content (e.g. hate speech and child pornography) should be clarified and differentiated. A precise definition of “hate speech” is a necessary prerequisite for further discussions about this issue on the Internet. At a m inim um , it is im perative that speech restrictions, w hen they m ust be enacted, be clearly and precisely draw n so that they do not chill law ful speech. • Words should not be confused w ith actions. A clear distinction must be maintained betw een w hat individuals say and think on the one hand, and w hat they do on the other. O nly then can w e have an equitable system of law in w hich individuals are assumed to be rational legal subjects, w ho are themselves responsible for their ow n actions and not some third party. • Coherent policy cannot be developed on the basis of reacting to individual cases of extrem e m aterial. Instead, research and m onitoring m ust form the foundations for any decision-m aking. O bviously there is distressing m aterial to be found on the Internet. But the fact that som ething exists online tells you nothing about how w idely read or w idely accepted it is. There should be an understanding that som e hate sites are just too sm all and insignificant to be prosecuted. They are in fact consigned to oblivion, despite being theoretically accessible to the general audience. • Since the Internet is a high-tech environm ent, m any battles here can be w on through technical m eans. O ne good exam ple is adding voluntary disclaim ers to search engine results or the establishm ent of sponsored links to sensible keyw ords, as w as dem onstrated in the 288

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Paris O SCE M eeting on the Relationship between Racist, Xenophobic and anti-Semitic Propaganda on the Internet and Hate Crimes in June 2004. • A society w ith confidence in its values and ideals has little to fear from the expression of dissenting view s, no m atter how repugnant those view s m ay be. Attem pts by governm ents to stifle the exchange of view s and the free flow of inform ation in the com petition of ideas m ust be resisted vigorously. Never before has so m uch inform ation been accessible at the stroke of one’s fingertips; never before has it been easier for people around the w orld to com m unicate w ith each other; and never before has it been easier for citizens to participate in public discourse and m ake their voices heard. Instead of focusing on w ays to censor hate speech, w e m ust concentrate on answ ering such expression w ith m ore speech. The battle against intolerance cannot be w on through governm ent regulation or m ere legislative action. Instead, it is a fight that w ill be w on or lost in the com petition of ideas.

D . Educatio n & D evelo ping Internet Literacy Personal and Parental Responsibility • Parents and other adults alw ays have a role to play regarding children’s access to the Internet. Adults should act responsibly tow ards children’s Internet usage rather than relying on technical solutions that do not fully address problem s related to Internet content. Parents and teachers and others w ho are responsible for children’s Internet usage need to be educated in this regard. • In this borderless m edia w orld of VCRs, DVDs, satellite TV, and the Internet, children and young people have increasing access to m edia products from around the globe. Rating and classification system s, legislation and industry codes and guidelines are no longer enough to protect children. Digital m edia are forcing a shift in responsibility from statutory regulators tow ard the individual household. The Internet does not w ork on the principles of censorship or control, but rather on principles of responsible decisionm aking and calculated risk-taking – and those are the kinds of skills the young should develop. • Librarians and teachers should also have a role to play as far as access to the Internet is provided by public libraries and schools. PRO JECTS 2004

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Any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional and universal prohibition on using the Internet to distribute content that is freely available to adults in other m edia. • If “regulation” w ith an em phasis on self-regulatory or co-regulatory initiatives is addressed, then “self” should m ean individuals rather than self-regulation by the Internet industry w ithout the involvem ent of individuals and Internet users. There should be m ore em phasis on prom oting the Internet as a positive and beneficial m edium . Media Literacy • Media literacy is a necessary com plem ent to traditional literacy. Young people today need to be able to read, understand and bring critical-thinking skills to inform ation in all form s, including m edia. Media literacy should involve analysis, evaluation, production of and critical reflection about m edia products and should stress the positive and creative aspects of m edia and popular culture. • Research is critical to understanding how technology is fundam entally transform ing young people’s lives. Research involves and requires public Internet policy, governm ent policy-setting and responsive national public education strategies on Internet use. Efforts should be m ade to increase co-operation betw een O SCE countries in this field. • Stakeholders in governm ent and industry should be encouraged to support public aw areness initiatives to educate parents and other adults not only about the potential risks of the Internet, but also about the opportunities and resources that are available. This support can cover a w ide variety of contributions including radio, television, print and Internet advertising, posters and brochures and online resources for parents. Journalist Training • There is still a shortage of academ ic courses for journalists w ith a special focus on the role of the Internet in journalism . Journalist training needs to be im proved to allow students to acquire m ore specific know ledge and vocational skills on how to utilize the Internet. 290

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• O ne of the m ajor issues for local m edia in the O SCE area is Internet literacy for journalists w ho speak the language of that region. Journalists w ho can speak English have a distinct advantage over their colleagues in ICT, w hereas journalists w ith other language backgrounds have lim ited opportunities to gain vocational training on using the Internet because of the lack of special courses and learning program m es in local languages. There is also a shortage of online inform ation in local languages. Special on/off-line Internet training courses need to be arranged and the learning of foreign languages should be prom oted.

E. Access to Netw o rks and to Info rmatio n Freedom of Information • Governm ents should m ake m ore inform ation available online. This w ould increase transparency and allow every citizen to obtain inform ation from any com puter connected to the Internet. Governm ents and intergovernm ental organizations should support dissem ination of official inform ation online. Projects should be realized that foster citizens’ freedom to receive and circulate online inform ation about the activities of governm ents and state bodies. • Universal access to inform ation and know ledge, especially inform ation in the public dom ain, is a prerequisite for broader participation in developm ent processes and civil society. Access to quality education for all is a basic right and is essential for building the necessary skills and capacities for developm ent, progress and social peace in all societies. ICTs provide im m ense opportunities to increase access to education and inform ation. Access to Networks • Universal access to com m unication services and netw orks is essential for the realization of com m unication rights but w ill not be achieved, w ithin the foreseeable future, by household access to the Internet alone. Access for all to the global com m unications environm ent requires investm ent in public access centres and in traditional com m unication technologies such as com m unity radio and television. Public investm ent in com m unications facilities is one approach. Com m unity-based initiatives should be encouraged and supported including legal and/or regulatory reform s w here there are legislative or regulatory barriers. PRO JECTS 2004

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• Participating States in the O SCE should aim to expand the reach of cyberspace by taking action to foster Internet access both in hom es and in schools. They should also im plem ent policies w hich aim to ensure that the Internet is an open and public forum for the airing of all view points. To achieve this goal, it is im perative that governm ent regulation is kept to a m inim um , and the fundam ental freedom s of speech, expression, and the press are respected. • Another prerequisite is to significantly im prove electric pow er supplies in countries in the O SCE region w here this is required.

F. Future Challenges o f the Info rmatio n So ciety • Access to the public sphere is being rapidly dem ocratized. The Internet, for exam ple, has m ade it m uch easier for like-m inded individuals to m eet, join forces, and raise m oney in support of their political view s. The principle of freedom of expression m ust apply not only to traditional m edia but also to new m edia, including the Internet. It is the basic prem ise of know ledge societies as laid out in Article 19 of the Universal Declaration of Hum an Rights. It is im portant to continue to m obilize energies and efforts to prom ote freedom of expression and its corollary, freedom of the press, as a basic right indispensable to the exercise of dem ocracy. Freedom of expression is a m ajor avenue through w hich creativity, innovation and criticism can be developed. The nature of know ledge societies should be conceived as plural, variable and open to choice, and freedom of expression is inseparable from this vision. • The right to privacy faces new challenges and m ust be protected. Every person m ust have the right to decide freely w hether and in w hat m anner he or she w ishes to receive inform ation or to com m unicate w ith others, including the right to com m unicate anonym ously. The collection, retention, processing, use and disclosure of personal data, no m atter by w hom , should rem ain under the control of the person concerned. Pow ers of the private sector and of governm ents to access personal data risk abuse of privacy and m ust be kept to a legally acceptable m inim um and subject to a fram ew ork of public accountability. Encryption techniques and research should be supported. • The Internet provides enorm ous scope for the sharing and developm ent of the com m on pool of hum an know ledge but this potential is 292

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increasingly held back by the reinforcem ent of private inform ation property regim es in the Internet environm ent. There is a need for a fundam ental review of international regulatory instrum ents governing copyright, patents and tradem arks. The aim is to foster the developm ent of global know ledge, and to safeguard the right of access to inform ation and the right to creative reuse and to adaptation of inform ation, w hich in turn should accelerate the social and econom ic benefits of freely available inform ation. • The fight against terrorism m ust not be used as an excuse to lim it the free flow of inform ation on the Internet. Prosecution of “cybercrim e” m ust only target illegal activities as such and m ust in no w ay endanger or lim it the technical infrastructure of the Internet.

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Tw enty-First Century Challenges fo r the Media in Central Asia: D ealing w ith Libel and Freedo m o f Info rmatio n Sixth Central Asian Media Co nference Dushanbe, 23-24 Septem ber 2004

O n 23 and 24 Septem ber 2004, the annual Central Asian Media Conference w as held in Dushanbe, Tajikistan. The conference w as organized under the auspices of the O SCE Representative on Freedom of the Media, Miklós Haraszti, and the O SCE Centre in Dushanbe. For the sixth tim e, m ore than 100 journalists from four Central Asian countries – Tajikistan, the Kyrgyz Republic, Uzbekistan and Kazakhstan – representatives of non-governm ental m edia organizations, as w ell as experts and foreign guests cam e together to discuss the latest developm ents in the m edia field. As in previous years, the conference provided a unique opportunity for interaction and exchange of view s am ong the participants. This year the conference focused on Libel and Legislation on Freedom of Inform ation as m odern challenges for the m edia in the tw enty-first century. The participants agreed that the obsolete libel law s w hich exist in four Central Asian countries are inadequate, even detrim ental, to a dem ocracy w here freedom of the press and uninhibited discussion of public issues could be dim inished by libel sentences used against journalists because of their w ork. During the discussion, it w as stressed that som e Central Asian States have m ade certain steps tow ards freedom of inform ation, but substantial problem s rem ain. None have law s that m eet international standards on access to inform ation. State Secrets’ Acts that underm ine the right to access to inform ation are often abused. Significant efforts are required to ensure that the region joins the rest of the O SCE in recognizing the right to access to inform ation for the m edia and the public. The conference ended w ith a declaration on libel and freedom of inform ation, to w hich all participants subscribed. In addition to this declaration, participants form ulated concrete proposals for action w hich the O SCE Representative on Freedom of the Media w ill subm it to the respective authorities.

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D ushanbe D eclaratio n o n Libel and Freedo m o f Info rmatio n The debates at the Dushanbe Conference on the Media stressed the follow ing conclusions: O n Libel: • The possibility for governm ental officials and politicians (public figures) to sue the m edia and journalists should be lim ited. • Defam ation should be decrim inalized and replaced w ith appropriate and narrow ly defined civil defam ation law s, introducing a defence of “reasonable publication” and capping dam ages. • If full decrim inalization is not possible in the short term , the possibility to suspend tem porarily the applicability of defam ation articles should be considered. Law s envisaging the crim inal and civil liability of journalists for insulting the honour and dignity of heads of state on behalf of third persons should be abolished. O n Freedom of Information: • Com prehensive law s on Free Access to Inform ation based on international standards should be adopted and their proper im plem entation ensured. • Multilateral oversight over the observation of these law s and standards should be ensured and carried out by parliam ents, parliam entary com m issions open to the public, com m issions of public hearings and independent om budsm en. • State Secrets’ law s should be am ended in order to lim it their applicability only to that inform ation w hose disclosure w ould significantly threaten the national security or territorial integrity of a nation. • Rules by w hich inform ation is classified should be m ade public. • Lim itations in tim e should be established for inform ation classified as secret. • Crim inal liability for journalists connected w ith the disclosure of state secrets should be lim ited in cases of public interest. Dushanbe, 24 Septem ber 2004

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Tw enty-First Century Challenges fo r the Media in So uth Caucasus: D ealing w ith Libel and Freedo m o f Info rmatio n First So uth Caucasus Media Co nference Tbilisi, 25-26 O ctober 2004

O n 25 and 26 O ctober 2004, the First South Caucasus Media Conference w as held in Tbilisi, Georgia. The conference w as organized by the O SCE Representative on Freedom of the Media, MiklĂłs Haraszti, in co-operation w ith the O SCE Mission to Georgia. For the first tim e journalists and NGO s from Arm enia, Azerbaijan and Georgia, as w ell as international experts cam e together to discuss their com m on problem s. The conference focused on Libel and Legislation on Freedom of Inform ation as m odern challenges for the m edia in the tw enty-first century. The conference heard that obsolete defam ation law s are detrim ental to dem ocratic reform s w hen freedom of the press and uninhibited discussion of public issues are chilled by the use of these law s. There w as also a discussion of the positive developm ents in three countries. Earlier this year Georgia becam e one of the six O SCE participating States decrim inalizing defam ation. Arm enia also took an im portant step forw ard by reducing crim inal penalties for libel. The process of elaboration of the new Law regulating defam ation, libel issues and protection of honour and dignity has started in Azerbaijan. The conference participants also stated that access to official inform ation rem ains a m ajor problem area for the m edia in the three South Caucasus States. Am ong the m ajor obstacles the journalists highlighted w ere: the poor im plem entation of existing law s on access to inform ation; excessive state secrets law s and crim inal penalties for their violations; lack of public aw areness of legal rights to access to inform ation; and lack of professionalism am ong the m edia. Participants encouraged the O SCE Representative on Freedom of the Media to continue the South Caucasus Media Conferences in the future. The conference ended w ith a Declaration on libel and freedom of inform ation, to w hich all participants subscribed.

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The Tbilisi D eclaratio n o n Libel and Freedo m o f Info rmatio n O n Defamation: Executive and legislative authorities at all levels should system atically review all legal norm s including law s, regulations, decrees and other legal instrum ents, that im pose crim inal and civil sanctions for defam ation. This review should be in consultation w ith the judiciary, m edia and civil society organizations. The changes should include: • In Arm enia and Azerbaijan, crim inal defam ation law s should be elim inated and replaced w ith appropriate and narrow ly defined civil defam ation law s. As a first step, at least prison sentences should be abolished including suspended ones. If decrim inalization is not possible in the short term , all current cases should be stopped and a m oratorium on further cases should be im posed. All persons im prisoned for these offences should be released and rehabilitated. • Public bodies should not be eligible to use defam ation law s. Under the law, public officials and elected representatives should be prohibited from using defam ation law s to suppress legitim ate criticism of their activities or lim it political debate. • Specific crim inal and civil law s for insulting heads of state should be abolished. • Civil defam ation law s should be revised based on established international standards and best practices. The burden of proving falsehood should alw ays be placed on the person w ho is com plaining. Even in cases of factual inaccuracies, there should be a defence of “reasonable publication” available. • In parallel to decrim inalization, civil dam ages should be lim ited to w hat is clearly necessary only to repair the harm done by the defam atory statem ent and take into account the effect of the aw ard on the ability of the defendant to continue to exercise their profession. Law s should define an upper lim it for dam ages. • Media should develop, prom ote and observe professional and ethical standards. • Governm ents should not obstruct efforts by m edia to establish professional bodies and create self-regulatory m echanism s. • Specialized non-governmental organizations should conduct ongoing monitoring and regularly report on the use of these law s. They should provide training to media on their legal rights and obligations. PRO JECTS 2004

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O n Freedom of Information: Executive and legislative authorities at all levels should system atically review all legal norm s including law s, regulations, decrees and other legal instrum ents, that affect access to inform ation held by public bodies. This review should be in consultation w ith the judiciary, m edia and civil society organizations. The changes should include: Regarding Freedom of Information and Related Laws: • The adoption of a com prehensive law on Free Access to Inform ation based on international standards should be finalized in Azerbaijan. • All three countries should develop a strategy jointly w ith the m edia and NGO s and a com prehensive strategy for the im plem entation of the law s. • All public institutions and governm ent departm ents should establish procedures and m echanism s (training, public hours, appointm ent of inform ation officers, setting up inform ation m anagem ent system s, creating and m aintaining official w ebsites) to effectively enable the m edia and the public to access inform ation held by the institution. • O fficial w ebsites should be established, m aintained and regularly updated. • O versight over the observation of these law s and standards should be ensured and carried out by parliam ents, parliam entary com m issions open to the public, com m issions of public hearings and an independent inform ation com m ission. • Law s should be developed to create an independent review m echanism to provide protection for “w histleblow ers”. Regarding State Secrets: • The State Secrets Acts and regulations should be am ended in order to lim it their applicability only to that inform ation w hose disclosure w ould significantly threaten the national security or territorial integrity of a nation. • Rules by w hich inform ation is classified should be m ade public. Inform ation should be classified w ithin a short period of being created. Inform ation classified as secret should be review ed periodically and be declassified no later than 20 years after it w as classified. Independent bodies w hich review classification decisions should be created, such as om budsm en or inform ation com m issioners. 298

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• Crim inal liability connected w ith the disclosure of state secrets should be lim ited in cases of public interest. Journalists should not be required to disclose their sources. The Judiciary: • The independence of the judiciary has to be strengthened in order to effectively enforce the right to freedom of inform ation. The M edia and N GO s: • Should prom ote aw areness of access to inform ation law s and m onitor their use. • Investigate all illegal restrictions on freedom of inform ation, attacks on journalists, cases of punishm ent of journalists for seeking and publishing inform ation regarded to be of public interest. • The m edia should know their rights to access inform ation under existing legislation and use those rights. Unlaw ful denials should be challenged and publicized.

Tbilisi, 26 O ctober 2004

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Legal Assistance In 2004, the O ffice of the Representative on Freedom of the Media continued to provide legal assistance to the O SCE field presences and participating States for the fourth year. This is done as a part of the activities under the m andate to assist the participating States to fulfil their O SCE com m itm ents in the sphere of freedom of the m edia and freedom of expression. By the end of O ctober, the O ffice had commissioned a total of 18 legal review s from independent international media experts. Seven of the review s w ere on draft legislation (one of the seven on tw o alternative drafts), and eleven on current legislation in force in the O SCE region. All review s include recommendations on how to bring the legislation in line w ith O SCE commitments and other international standards. Most review s focus on one or m ore particular law s or draft law s, but there have also been som e analyses on them es, m ainly on libel. These tackle all legislation in force and aim to provide an overview of the situation in the country. In each instance, co-ordination w ith the Council of Europe is crucial to avoid overlap betw een the tw o institutions. As in the past, som e review s are done in co-operation w ith the Council of Europe. This year three review s w ere issued as joint docum ents: on the tw o alternative draft law s on access to inform ation in Azerbaijan and on the tw o alternative draft law s related to terrestrial digital broadcasting in Albania. In O ctober, a joint round table w ith the Council of Europe w as also organized in Baku as a follow -up to the legal review s on libel and freedom of inform ation w ith the aim of bringing together international and local experts and providing an opportunity for a m ore detailed discussion on the recom m endations. In Georgia three legal review s w ere prepared in early 2004. After a new m edia law w as adopted m id-year, the O ffice furtherm ore com m issioned a handbook for legal practitioners advising on the application of the new law. Six O SCE participating States benefited from the assistance in 2004: Albania, Azerbaijan, Belarus, Georgia, Kazakhstan and Uzbekistan. Responding to a request for assistance from the Albanian Prim e Minister to review all m edia legislation, eight of the eighteen review s are linked to this country. All legal reviews can be found on the webpage of the Representative: <http://www.osce.org/fom/documents.html>

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Libel and Insult Law s: A Matrix o n Where We Stand and What We Wo uld Like to Achieve

Background. Probably the single m ost prom inent excuse for oppressing individual journalists in the O SCE region is the existence of crim inal libel and insult law s. The fact that courts that m isuse these law s are often far from independent is only one part of the problem . The other “justification” m aking abuse easier is the fact that these ancient, inadequate legal provisions are still on the books in m ost O SCE participating States (even if they are unused in m ost old dem ocracies). Cam paigning against crim inal libel and insult law s and disproportionate dam ages under civil libel provisions has been a priority of the O ffice of the Representative on Freedom of the Media for the past four years. This cam paign has evolved into a long-term strategy. The Pioneering Database. The first stage of the strategy has been underw ay since June 2004, w hen the O ffice of the O SCE Representative on Freedom of the Media started the com pilation of a m atrix – a database – on crim inal and civil provisions and court practices in the O SCE area related to defam ation and insult. This pioneering database is being com piled as a source of reference for the O SCE participating States w ho w ould like to adapt their libel legislation to tw enty-first century standards. At tim e of w riting, detailed reports have been received from 42 countries. Partial inform ation is available about defam ation provisions in ten O SCE participating States. No data is available on this m atter in three participating States. Inform ation for the m atrix w as com m issioned from governm ents of the O SCE participating States, O SCE field operations and m edia NGO s. Suggestions on the decrim inalization strategy and recom m endations to the O SCE participating States are being produced by a legal expert contracted by the Representative. Where We Stand and What We Would Like to Achieve. Progress w as achieved in decrim inalizing libel in Georgia and Moldova in 2004. In this they joined Bosnia and Herzegovina, Cyprus, Ukraine and the PRO JECTS 2004

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United States (there is no federal law that m akes libel a crim inal offence, but 17 states and tw o territories still have crim inal libel law s on the books). How ever, regular application of crim inal libel and insult law s in the O SCE area and increasing dem ands for exorbitant financial dam ages by public officials rem ain m ajor challenges faced by the m edia in the tw enty-first century. Besides, the m ere fact that these law s are still on the books creates a chilling effect: it generates fear of prosecution for speech, therefore im peding free discussion of im portant public issues, criticism of governm ent officials and transparency of the political process. The results of this survey show that there is grow ing understanding in the O SCE area of the problem atic nature of crim inal defam ation and insult law s. O ne third of the surveyed participating States have attem pted to change or at least revise their approach to crim inal libel law s. Rem arkably, it is new dem ocracies w ho have taken the lead in this reform and their grow ing num ber m ay soon set a standard w hich could be used to instil decrim inalization throughout the O SCE area. The results of this survey w ill be presented to the O SCE Perm anent Council in March 2005.

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Visits and Interventio ns O ctober 2003 â&#x20AC;&#x201C; 14 February 2005 1 The O ffice of the Representative on Freedom of the Media visited or corresponded w ith the follow ing governm ents of the O SCE participating States: Albania Interventions - 10 Septem ber 2004: Letter to Speaker of the Assem bly of the Republic of Albania Servet Pellum bi regarding relevant Albanian institutions to assist in aligning the local m edia legislation w ith European standards and requesting a postponem ent of the plenary debate so as to provide requested and adequate assistance. Armenia Interventions - 23 July 2004: Letter to Minister of Foreign Affairs Vardan O skanyan concerning am endm ents to the Crim inal Code partially decrim inalizing libel. Azerbaijan Visits - International Freedom of Expression Exchange (IFEX) m eeting, Baku 13-17 June 2004, attended by assistant research officer Ana Karlsreiter - Round table Legal Aspects Affecting Freedom of the M edia in Azerbaijan, Baku 28 O ctober 2004 Interventions - 10 Novem ber 2003: Letter to Minister of Foreign Affairs H.E. Vilayat Gouliyev on the arrest of Azerbaijani journalist Rauf Arifoglu, editor-in-chief of the countryâ&#x20AC;&#x2122;s leading opposition new spaper Yeni M usavat. - 19 Novem ber 2003: Letter to Minister of Foreign Affairs H.E. Vilayat Gouliyev regarding the fact that six leading daily 1

This list is a selection of our activities during the year.

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new spapers in the country (Azadliq, Yeni M usavat, Baki Khaber, Hurriyyet, Yeni Z aman and the Russian-language paper, N ovoye Vremya) had been forced to suspend publication due to printing problem s. - 3 Decem ber 2003: Letter to Minister of Foreign Affairs H.E. Vilayat Gouliyev concerning Azerbaijani journalist, Rauf Arifoglu, editor-in-chief of the country’s leading opposition new spaper Yeni M usavat w ho w as arrested in connection w ith the protest riots that occurred in Baku follow ing the O ctober presidential election and w ho w as in extrem ely poor health. - 28 July 2004: Letter to Minister of Foreign Affairs Elm ar Mam m adyarov concerning reported acts of violence against tw o journalists, Mr. Aydin Q uliyev, editor-in-chief of Baki-Khabar and Mr. Eynulla Fatullayev, a journalist w ith the m agazine M onitor. - 15 Septem ber 2004: Letter to Deputy Minister of Foreign Affairs Mam m ad Guliyev regarding m edia legislation, the cases of Aydin Q uliyev and Eynulla Fatullayev. - 7 January 2005: Letter to Minister of Foreign Affairs Elm ar Mam m adyarov asking for m ore inform ation on the case of Mr. Alim Kazim ov, reporter and photographer w ith the daily Yeni M usavat, w ho w as allegedly beaten up. Belarus Visits - 9-10 February 2005 visit to Belarus. Interventions - 12 Decem ber 2003: Letter to Minister of Foreign Affairs Sergei Martynov regarding actions taken against the country’s largest non-state new spaper N arodnaya Volya. - 22 June 2004: Letter to Minister of Foreign Affairs Sergei Martynov regarding the deportation of Mikhail Podolyak, a Ukrainian citizen and a w riter for Vremya new spaper from Belarus. - 22 O ctober 2004: Letter to Minister of Foreign Affairs Sergei Martynov regarding the m urder of Veronika Cherkasova as a condem nable attack against a free press.

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Belgium Interventions - 26 March 2004: Letter to Minister of Justice Laurette O nkelinx concerning the fact that the Belgian police searched the house and office of Hans-Martin Tillack, the Brussels correspondent for the Germ an w eekly Stern. - 7 Decem ber 2004: Meeting w ith Minister of Foreign Affairs, i.a. concerning the fact that the case of Hans-Martin Tillack, the Brussels correspondent for the Germ an w eekly Stern, is still pending and should be solved in the spirit of the protection of journalistic sources as defined by the legislation pending in Belgium ’s second cham ber of Parliam ent (Senate). Bulgaria Interventions - 29 Novem ber 2004: Letter to Minister of Foreign Affairs Solom on Passy regarding Rom anian television journalist George Buhnici (Bucharest-based Pro TV) accused of using a “special technical device designated for tacit collection of inform ation”. Cro atia Interventions - 1 Decem ber 2004: Letter to Vesna Skare O zbolt, the Minister of Justice of the Republic of Croatia on sentencing journalist Vladim ir Matjanic to a suspended prison term for libel and encouraging further reform of Croatian libel legislation. Czech Republic Interventions - 20 January 2004: Letter to Minister of Foreign Affairs Cyril Svoboda concerning the physical attack against Tom as Nem ecek, editor-in-chief of the political w eekly Respekt in Prague on Saturday 17 January 2004 and expressing w orry over the grow ing num ber of physical attacks on investigative journalists.

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France Interventions - 14 April 2004: Letter to Minister of Econom y Nicolas Sarkozy concerning the Bill to Prom ote Confidence in the Digital Econom y that w as under discussion in the French Parliam ent. Geo rgia Visits - First South Caucasus Media Conference Twenty-First Century Challenges for the M edia in South Caucasus: Dealing with Libel and Freedom of Information, Tbilisi 25-26 O ctober 2004 Interventions - 19 Decem ber 2003: Letter to Foreign Minister Tedo Japaridze concerning Andrei Babitsky, a correspondent for Radio Liberty, w ho had not received a visa to Georgia to cover the Presidential elections scheduled for 4 January 2004. Greece Interventions - 8 February 2005: Letter to Petros G. Molyviatis, the Minister of Foreign Affairs of Greece, about sentencing Austrian author Gerhard Haderer for blasphem y to a suspended six-m onth prison term . The reason w as Haderer’s com ic book The Life of Jesus. Hungary Interventions - 15 Novem ber 2004: Letter to Foreign Minister Ferenc Som ogyi regarding indictm ent of journalist Rita Csik for “the deliberate breach of a state secret”. Ireland Interventions 14 O ctober 2003: Letter to Minister of Foreign Affairs H.E. Brian Cow en T.D. on the statutory Press Council and several other proposals for changes in the defam ation law m ade by a Legal Advisory Group set up by the Governm ent.

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Italy Interventions - 1 March 2004: Letter to Roberto Antonione, Under-Secretary of State at the Ministry of Foreign Affairs concerning a Trieste court sentencing journalist Massim iliano Melilli to 18 m onths’ im prisonm ent and a 100,000 euro fine for defam ation. - 15 Novem ber 2004: Letter to Am bassador Francesco Bascone, asking to m ake the Italian Senate (second cham ber debating legislation) aw are of RFO M’s strategic goal to com pletely decrim inalize libel. Kazakhstan Interventions - 18 Novem ber 2003: Letter to Minister of Foreign Affairs H.E. Kasym zhom art Tokayev concerning Mr. Erm urat Bapi, editor-inchief of the new spaper SolDAT w ho w as convicted to a one-year suspended prison sentence for “deceitful business activity” and tax evasion. Mo ldo va Interventions - 3 Decem ber 2003: Letter to Minister of Foreign Affairs Nikolae Dudau regarding tw o cases concerning TeleRadio M oldova (TRM ). O ne case w as the cancellation of the evening talk show Buna Seara, another concerned the fact that Valentina Ursu, head of the New s Departm ent of Radio M oldova, has been replaced as the presenter of the radio program m e M orning Wave. - 8 Septem ber 2004: Letter to Minister of Foreign Affairs Andrei Stratan regarding protests in Moldova by journalists from the national broadcaster TeleRadio M oldova (TRM ) and expressing concern over the arrest of cam eram an Dinu Mija. Netherlands - 3 Novem ber 2004: Letter to Minister of Foreign Affairs Bernard Bot com m ending the Dutch Governm ent for quickly and strongly condem ning the m urder of film m aker Theo van Gogh as an attack against freedom of expression, and asking for sw ift investigation.

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Po land Interventions - 17 Decem ber 2003: Letter to Foreign Minister Wlodzim ierz Cim oszew icz on charges by the Prosecutorâ&#x20AC;&#x2122;s O ffice of the O chota District in Warsaw against Maciej Lukasiew icz, editorin-chief of the daily Rzeczpospolita. - 13 February 2004: Letter to Secretary of State Adam D. Rotfeld concerning the confirm ation of the im position of a three-m onth sentence on Mr. Andzrej Marek, editor-in-chief of the w eekly Wiesci Polickie. Ro mania Interventions - 8 Decem ber 2003: Letter to the Minister of Foreign Affairs Mircea Geoana concerning the physical attack of the journalist Ino Ardelean, w ho reports on local politics and corruption cases for the daily Evenimentul Z ilei in Tim isoara. - 15 January 2004: Letter to Minister of Foreign Affairs Mircea Geoana regarding the case of the physical attack of the journalist Ino Ardelean, the issue of pressure on or intim idation of the m edia, and the case of assault on the journalist Csondy Szoltan, a journalist for Hargiat N epe in Meircuread-Ciuc (Csikszereda). Russian Federatio n Interventions - 6 February 2004: Letter to Deputy Foreign Minister Vladim ir Chizhov concerning an explosive device that detonated outside the apartm ent of the w ell-know journalist Elena Tregubova, form er Krem lin correspondent for Izvestia, Kommersant and Russkiy Telegraf. - 6 Septem ber 2004: Letter to Minister of Foreign Affairs Sergei Lavrov concerning reports of journalists w ho w ere allegedly prevented from covering the tragic events in Beslan, North O ssetia. - 8 Septem ber 2004: Letter to Minister of Foreign Affairs Sergei Lavrov concerning the arrest of cam eram an Dinu Mija on 6 Septem ber by police in Tighina in the self-proclaim ed Transdniestrian republic in Moldova and his sentencing to 15 days in prison. - 14 Decem ber 2004: Letter to Minister of Foreign Affairs Sergei Lavrov about the arrest and release of Mikhail Afanasyev, a journalist from Abakan, Khakassia. 308

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Serbia and Mo ntenegro Visits - Sem inar on the inform ation society at the Centre for Internet Developm ent, Belgrade 26-29 February 2004, attended by senior advisor Christiane Hardy Interventions - 15 O ctober 2004: Letter to Zoran Stojkovic, the Minister of Justice of the Republic of Serbia on the Draft Crim inal Code encouraging Serbia to decrim inalize libel and insult. - 16 Decem ber 2004: Letter to the Com m ittee for Judiciary and Adm inistration of Parliam ent of the Republic of Serbia, encouraging MPs to support the decrim inalization of defam ation and insult. - 8 February 2005: Letter to Vojislav Kostunica, the Prim e Minister of Serbia encouraging the Governm ent to change crim inal libel provisions follow ing the outcom e of m eetings w ith the Ministers of Culture and Justice of Serbia. - 8 February 2005: Letter to the participants of the round-table discussion on decrim inalization of defam ation in the Republic of Serbia w hich took place at the O SCE Mission to Serbia and Montenegro on 21 January 2005. The letter encouraged them to participate in the process of am ending the Serbian crim inal libel and insult provisions. Slo vak Republic Interventions - 23 July 2004: Letter to Deputy Prim e Minister and Minister for Justice Daniel Lipsic concerning the new Crim inal Code proposed to Parliam ent. Tajikistan Visits - Sixth Central Asian Media Conference Twenty-First Century Challenges for the M edia in Central Asia: Dealing with Libel and Freedom of Information, Dushanbe, Tajikistan, 23-24 Septem ber 2004.

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Interventions - 30 Septem ber 2004: Letter to First Deputy Foreign Minister Sirodjidin Aslov and Presidential Advisor Karom atullo O lim ov on suspension of publication of five independent new spapers. - 30 Novem ber 2004: Letter to Foreign Minister Nazarov about Ruzi N av printed in Kyrgyzstan but im pounded by tax police upon return on 4 Novem ber. - 7 February 2005: Letter to Foreign Minister Nazarov about confiscation of a print run of the N erui Sukhan new spaper and closing dow n the printing house Kayhon for alleged adm inistrative violations. Turkmenistan Interventions - 30 March 2004: Letter to Foreign Minister of Turkm enistan Rashid Meredov regarding tw o journalists Rakhim Esenov and Ashyrguly Bayryev w ho w ere arrested by the National Security Ministry on 26 February and 1 March 2004 respectively and w ho w orked for Radio Free Europe. Ukraine Interventions - 18 Decem ber 2003: Letter to Minister of Foreign Affairs Kostyantin Griyshenko concerning the death of Volodym yr Karachevtsev, chairm an of the Independent Regional Union of Journalists and acting editor-in-chief of Kuryer new spaper. United States o f America Interventions - 30 Septem ber 2004: Letter to Secretary of State Colin Pow ell calling on strict im plem entation of Berm an am endm ent to fully abolish regulations that require publishers and authors to seek a licence from the Treasury Departm ent to publish literature from em bargoed countries, such as Cuba, Iran and Sudan, in the US. - 13 O ctober 2004: Letter to Attorney General of the US Departm ent of Justice John Ashcroft asking for additional inform ation on w hy the prosecution questioned the validity of Ms. Miller’s “protection of sources” defence. Judith Miller, a journalist for the N ew York Times w as sentenced to jail for contem pt of court. 310

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Uzbekistan Interventions - 22 January 2004: Letter to Minister for Foreign Affairs Sadyk Safayev concerning Sergei Yezhkov, a journalist for Pravda Vostoka, w ho w as laid off, and expressing w orry that his dism issal w as related to his criticism of the situation related to hum an rights and freedom of expression and m edia. - 30 Septem ber 2004: Letter to Minister for Foreign Affairs Sadyk Safayev concerning suspension of Internew s m edia NGO for adm inistrative violations. - 6 January 2005: Letter to Minister for Foreign Affairs Sadyk Safayev concerning the statem ent â&#x20AC;&#x153;O n violation of the legislation of the Republic of Uzbekistanâ&#x20AC;? w hich the Ministry of Justice sent to the international m edia NGO Internew s Netw ork based in Tashkent.

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Visits o f the Representative

Assessm ent visit to Ukraine, 6-8 April 2004 IPI Conference, Warsaw 15-17 April O SCE Conference on Anti-Sem itism , Berlin 28-29 April 2004 May 2004 visit to Kosovo to present a report on the behaviour of the m edia during the m id-March Kosovo riots International Press Institute’s Annual World Congress, Warsaw 15-18 May 2004 Fifth International Writers in Prison Com m ittee’s Conference Dialogue – the Value of Word, Barcelona 19-20 May 2004 O SCE Meeting on the Relationship between Racist, Xenophobic and Anti-Semitic Propaganda on the Internet and Hate Crimes, Paris 15-17 June 2004 Annual Heads of Mission Meeting, Vienna 28-29 June 2004 Sem inar Guaranteeing Freedom of the M edia on the Internet, Vienna 30 June 2004 Annual Session of the O SCE Parliam entary Assem bly, Edinburgh 4-6 July 2004 Visits to Writers in Prison, ARTICLE 19 and Index on Censorship, London 7-8 July 2004 Meeting w ith Stability Pact, 12 July 2004 Ministerial Troika, Brussels 12-13 July Meeting w ith International Federation of Journalists, Brussels 13 July 2004 Conference Guaranteeing M edia Freedom on the Internet, Am sterdam 27-28 August 2004 Alpbach Media Sym posium , Austria 2-4 Septem ber 2004 O SCE Conference on Tolerance and the Fight against Racism, Xenophobia and Discrimination, Brussels 13-14 Septem ber 2004 Sixth Central Asian Media Conference, Dushanbe 23-24 Septem ber

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Hum an Dim ension Im plem entation Meeting, Warsaw 4-15 O ctober 2004 Assessm ent visit to Moldova, 18-21 O ctober First South Caucasus Media Conference and Baku Round Table, 25-27 O ctober First visit of the Representative to the Council of Europe bodies, Strasbourg 4-5 Novem ber 2004 O SCE Ministerial Council, Sofia 6-7 Decem ber 2004 Meeting w ith m edia NGO s and Special Rapporteurs of the UN and O AS in London, 21 Novem ber 2004; adoption of a joint Declaration on International M echanisms for Promoting Freedom of Expression. The declaration w as published on 6 Decem ber 2004. Chairm an-in-O ffice and Heads of Mission Meeting, Vienna 13-14 January 2005 Visit to Belgrade to participate in the round-table discussion on decrim inalization of defam ation in Serbia, 24-25 January 2005. Participation in the UNESCO International Conference on Freedom of Expression in Cyberspace, Paris 3-4 February 2005.

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The O ffice participated in the fo llo w ing O SCE and o ther internatio nal meetings and co nferences: O SCE meetings: Chairm an-in-O ffice and Heads of Mission Meeting, Vienna 15-16 January 2004 O SCE/O DIHR Media Monitoring Guideline Workshop, Warsaw 26-28 January 2004 Winter session of the O SCE Parliam entary Assem bly, Vienna 19-20 February 2004 Regional Heads of Mission Meeting, Tashkent 2-4 March 2004 Workshop on the Protection of Human Rights W hile Countering Terrorism, Copenhagen 15-16 March Sem inar on Democratic Institutions and Democratic Governance, Warsaw 12-14 May 2004 Regional Heads of Mission Meeting, Baku 4-5 O ctober 2004 HCNM m eeting on the Use of M inority Languages in Electronic M edia, Am sterdam 15 O ctober 2004 O ther internatio nal meetings and co nferences: Principles of Guaranteeing Editorial Independence, m eeting at Leipzig University, 27-28 January 2004 Meeting w ith the Minister of Justice of Croatia and Croatian journalists after the parliam entary elections, 2-4 February 2004 Sem inar on European Audiovisual Policy, Belgrade 17-19 March 2004 European Com m ission Safer Internet Action Plan, Luxem bourg April 2004 Conference W hen freedom of the press slightly changes direction, Tihany 25-26 May 2004 Conference on m edia concentration, Bled, Slovenia 10-11 June 2004 Presentation of the annual Reporters sans Frontières’ Internet Under Surveillance report, Paris 22 June 2004 Third Frankfurt Days of Media Law, Viadrina University, Frankfurt/O der 20-21 O ctober 2004 Internet, Human Rights and Culture, National UNESCO Com m ission of the Netherlands, O egstgeest 4-5 February 2005 314

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Bo o ks Published by The O SCE Representative o n Freedo m o f the Media Most of these publications are available for dow nload at <http://w w w.osce.org/fom /publications.htm l> Yearbo o ks Freedom and Responsibility. Yearbook 1998/1999 (Vienna, 1999) Freedom and Responsibility. Yearbook 1999/2000 (Vienna, 2000) (also in Russian) Freedom and Responsibility. Yearbook 2000/2001 (Vienna, 2001) Freedom and Responsibility. Vol. 4, Yearbook 2001/2002 (Vienna, 2002) (also in Russian) Freedom and Responsibility. Vol. 5, Yearbook 2002/2003 (Vienna, 2003) Freedom and Responsibility. Vol. 6, Yearbook 2004 (Vienna, 2005) In D efence o f the Future Verteidigung der Z ukunft. Suche im verminten Gelände. Freim ut Duve und Nenad Popovic (Hg.), (Wien-Bozen: Folio Verlag, 1999) In Defence of the Future. Searching in the M inefield. Freim ut Duve and Nenad Popovic (eds.), (Vienna-Bolzano: Folio, 2000) Kaukasus – Verteidigung der Z ukunft. 24 Autoren auf der Suche nach Frieden. Freim ut Duve und Heidi Tagliavini (Hg.), (Wien-Bozen: Folio Verlag, 2001) Caucasus – Defence of the Future: Twenty-four Writers in Search of Peace. Freimut Duve und Heidi Tagliavini (eds.), (Vienna-Bolzano: Folio, 2001) Z ashchita budushego. Kavkaz v poinskah mira. Pod redaktsiei Fraim uta Duve i HaidiTal’iavini (Moscow : Glagol Publishing House, 2000) mo bile.culture.co ntainer (disco ntinued) In Defence of our Future. O dbrana nase buducnosti. Verteidigung unserer Z ukunft, n.d. Verteidigung unserer Z ukunft. mobile.culture.container 2001. Freim ut Duve, Achim Koch (Hg.), (Vienna, 2002) Balkan – die Jugend nach dem Krieg. Verteidigung unserer Z ukunft. Das Projekt mobile.culture.container. (Wien-Bozen: Folio, 2002) PUBLICATIO NS

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In Defence of our Future. mobile.culture.container Mitrovicë/a. Septem ber/O ctober 2002 (Mitrovicë/a, 2002) We Are Defending O ur Future. mobile.culture.container 2001-2003. Freim ut Duve and Achim Koch (eds.), (Vienna, 2003) Central Asia M ass M edia in Central Asia: Present and Future. Second Regional Conference‚ Dushanbe 14-15 Novem ber 2000 (Vienna, 2001) (also in Russian) M edia Freedom in Times of Anti-Terrorist Conflict. Third Central Asian Media Conference, Alm aty, 10-11 Decem ber 2001 (English/Russian), (Vienna, 2002) The M edia Situation in Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. Five Country Reports (English/Russian), (Vienna, 2002) Freedom of the M edia and Corruption. Fourth Central Asian Media Conference, Tashkent, 26-27 Septem ber 2002, (English/Russian), (Vienna, 2003) Central Asia - In Defence of the Future. M edia in M ulticultural and M ultilingual Societies. Fifth Central Asian Media Conference, Bishkek 2003 (Vienna, 2003) (also in Russian). 21st Century Challenges for the M edia in Central Asia: Dealing with Libel and Freedom of Information. Sixth Central Asian Media Conference, Dushanbe, 23-24 Septem ber 2004, (English/Russian), (Vienna, 2004) Repo rts and Bo o ks Slovenia, Croatia, Bosnia and Herzegovina, M acedonia (FY RO M ) and Kosovo. International Assistance to M edia. Mark Thom pson (Vienna, 2000) U obranu N ase Buducnosti. Freim ut Duve (urednik), (Zagreb: Durieux, 2001) Freedom of Expression, Free Flow of Information, Freedom of M edia. CSCE/O SCE Main provisions 1975-2001 (English/Russian), (Vienna, n.d.) Freedom of the M edia in Belarus. Public Workshop w ith Belarusian Journalists Vienna, 31 May 2001 (English/Russian), (Vienna, 2001) Ya shimau voinu... Shkola vizhivaniya, Yurii Rom anov, Prava Cheloveka(Moscow, 2001) 316

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From Q uill to Cursor: Freedom of the M edia in the Digital Era. Papers from the Workshop on Freedom of the Media and the Internet, Vienna, 30 Novem ber 2002 (Vienna, 2003) The Spiegel Affair (Moscow : Glagol Publishing House, 2003) (only in Russian) Spreading the Word on the Internet. 16 Answers to 4 Q uestions. Reflections on Freedom of the Media and the Internet, Am sterdam Conference, June 2003. Christiane Hardy and Christian Möller (eds.), (Vienna, 2003). M edia in M ultilingual Societies: Freedom and Responsibility. Ana Karlsreiter (ed.), (also in Serbian, Albanian, Hungarian and Rom ani) (Vienna, 2003). The Impact of M edia Concentration on Professional Journalism. Johannes von Dohnanyi and Christian Möller (Vienna, 2003). Letters to a M an of Letters. A Tribute to Freim ut Duve. O SCE Representative on Freedom of the Media 1998 – 2003. (Vienna, 2003). Ending the Chilling Effect. Working to Repeal Crim inal Libel and Insult Law s. Ana Karlsreiter and Hanna Vuokko (eds.) (Vienna, 2004). The M edia Freedom Internet Cookbook. Christian Möller and Arnaud Am ouroux (eds.) (Vienna, 2004). 21st Century Challenges for the M edia in South Caucasus: Dealing with Libel and Freedom of Information. First South Caucasus Media Conference, Tbilisi, 25-26 O ctober 2004, (English/Russian), (Vienna, 2004)

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Media NGO s in the O SCE Regio n Note: This is a list of NGO s w ith w hich w e have established contact or w hose m aterials have proven useful to our w ork during the past years. How ever, this is not an exhaustive list of all those NGO s w hich are doing valuable w ork on freedom of m edia issues in the O SCE region.

Accuracy in Media (AIM) Alternativna Inform ativna Mreza (AIM) Am erican Society of New spaper Editors (ASNE) Am nesty International (AI) Andrei Sakharov Foundation (ASF) Article 19 Association of Independent Electronic Media (ANEM) Association of Journalists (Gazeteciler Cem iyeti) Azerbaijan Journalists Confederation (AJK) Balkanm edia Association Belorussian Association of Journalists (BAJ) Canadian Civil Liberties Association (CCLA) Canadian Journalists for Free Expression (CJFE) Center for Journalism in Extrem e Situations of the Russian Union of Journalists (CJES) Central Asian and Southern Caucasus Freedom of Expression Netw ork (CASCFEN) Com m ittee to Protect Journalists (CPJ) Com m onw ealth Press Union (CPU) Cyber-Rights and Cyber-Liberties (UK) (cyber-rights.org) Czech Helsinki Com m ittee 318

M EDIA NGO S IN

THE O SCE REGIO N


Derechos Hum an Rights Electronic Frontier Canada (EFC) Electronic Frontier Finland (EFFI) European Alliance of Press Agencies (EAPA) European Ethnic Broadcasting Association (EEBA) European Institute for the Media (EIM) Fairness & Accuracy in Reporting (FAIR) Fem inists for Free Expression (FFE) Freedom Forum Freedom House Glasnost Defence Foundation (GDF) Global Internet Liberty Cam paign (GILC) Greek Helsinki Monitor (GHM) Hum an Rights Centre of Azerbaijan (HRCA) Hum an Rights Watch (HRW) Independent Journalism Centre, Moldova (IJC) Index on Censorship International Centre for Journalists (ICFJ) International Consortium of Investigative Journalists (ICIJ) International Federation for Inform ation and Docum entation (FID) International Federation of the Periodical Press (IFPP) International Foundation for Protection of Freedom of Speech “ADIL SO Z” International Freedom of Expression eXchange (IFEX) International League for Hum an Rights (ILHR) International Media Support International Press Institute (IPI) Internew s International M EDIA NGO S IN

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IREX – Media Developm ent Division (IREX) Journalist Safety Service (JSS) Journalists’ Legal Environm ent Centre ERINA Journalists’ Trade Union (JuHI) Kuhi Nor Media Centre Belgrade Medienhilfe National Freedom of Inform ation Coalition (NFO IC) Norw egian Forum for Freedom of Expression (NFFE) Norw egian People’s Aid Media O ffice in Belgrade (NPA) O pen Society Institute Netw ork Media Program Soros Foundation (O SI/NMP) Press Now Progressive Journalists Association (Cagdas Gazeteciler dernegi) Reporters sans frontières (RSF) RUH Azerbaijani Com m ittee for Protection of Journalists (RUH) Statew atch The International Federation of Journalists (IFJ) The Reporters Com m ittee for Freedom of the Press (RCFP) Turkish Press Council (Basyn Konseyi) Wom en Journalists Association of Azerbaijan World Association of Com m unity Radio Broadcasters (AMARC) World Association of New spapers (WAN) World Press Freedom Com m ittee (WPFC)

320

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THE O SCE REGIO N


The Autho rs

Arnaud Amo uro ux Arnaud Am ouroux is Assistant Project O fficer at the O ffice of the Representative on Freedom of the Media, w hich he joined in February 2004. He w as an O SCE long-term electoral observer in Georgia in 2003. He holds a m aster’s degree in Political Sciences and a postgraduate diplom a (DESS) in International Adm inistration Law from the Université Panthéon-Sorbonne of Paris. He has studied in Cardiff and Milan. Ilia D o hel Ilia Dohel is a Research Assistant at the O ffice of the Representative on Freedom of the Media, w hich he joined in June 2004. He previously w orked as an assistant to the Editor of the Annual Report at the O SCE Secretariat, and as a radio journalist in Minsk, Belarus. D ardan Gashi Dardan Gashi is a Kosovo Albanian and Austrian journalist, w riter and hum an rights activist. He served as a Special Representative of the O SCE Representative on Freedom of the Media. Currently he is em ployed by the Kosovo Governm ent. Mikló s Haraszti Miklós Haraszti is a Hungarian w riter, journalist, human rights advocate and university professor, w ho w as appointed O SCE Representative on Freedom of the Media in 2004. He w as born in Jerusalem in 1945 and studied Philosophy and Literature at the University of Budapest. He received in 1996 an honorary degree from Northw estern University in the United States. In 1976, Mr. Haraszti co-founded the Hungarian Dem ocratic O pposition Movem ent and in 1980 he becam e editor of the sam izdat periodical Beszélo. In 1989, he participated in the roundtable negotiations on transition to free elections. A m em ber of the Hungarian Parliam ent from 1990 to 1994, he then becam e a lecturer on dem ocratization and m edia politics at various universities. Mr. Haraszti has w ritten several essays and books, including A Worker in a Worker’s State and The Velvet Prison, both of w hich have been translated into several languages.

T HE AUTHO RS

321


Gus Ho sein Gus Hosein is a Senior Fellow at Privacy International (PI), a Londonbased w atchdog organization. At PI he directs a program m e that researches international anti-terrorism policies and their im plications for civil liberties. He also advises a num ber of non-governm ental organizations on issues relating to censorship, surveillance, and governance. He is a Visiting Fellow at the London School of Econom ics and Political Science w here he lectures on topics related to the Inform ation Society, data protection and privacy, regulation and technology. He holds a B.Math from the University of Waterloo and a PhD from the University of London. Ro nald Ko ven Ronald Koven is European Representative of the World Press Freedom Committee. Mo rris Lipso n Morris Lipson is a law yer currently w orking for ARTICLE 19, an international NGO cam paigning for free expression by providing legal analysis and consultation. He w as external consultant for the UN O ffice of the High Com m issioner for Hum an Rights in Geneva. He produced a study for O HCHR on Racism and the Internet, published by UNESCO . He also w orked on a com pilation of anti-racism practices. László Majtényi László Majtényi w as Chief Counsellor at the Constitutional Court of the Republic of Hungary (1990–95), head of the Departm ent of Law at the Technical University of Budapest (1992–95) and associate professor at Eötvös Loránd University Faculty of Law, Gyor (1995–2002) and Pécs University Faculty of Law (2003). He is a m em ber of the editorial boards of Fundamentum, a hum an rights journal, and Világosság, a review of social sciences, and is also on the board of the Budapest Review of Books. Majtényi w as chairm an of the Eötvös Károly Public Policy Institute in 2003. He is a specialist in constitutional law. He w as elected by Parliam ent as a special om budsm an for data protection and freedom of inform ation (1995–2001). To by Mendel Toby Mendel is the Law Program m e Director of ARTICLE 19, United Kingdom .

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Christian Mö ller Christian Möller has been Project O fficer at the O ffice of the O SCE Representative on Freedom of the Media in Vienna since 2003. From 1999 to 2002 he w orked for the Unabhängige Landesanstalt für das Rundfunkwesen (ULR) in Kiel, one of Germ any’s federal m edia authorities. He holds an M.A. in Media Studies, Germ an Language and Public Law from Christian Albrechts University, Kiel. His publications include The M edia Freedom Internet Cookbook (2004, ed. w ith Arnaud Am ouroux) and The Impact of M edia Concentration on Professional Journalism (2003, w ith Johannes von Dohnanyi). Peter No o rlander is a legal officer w ith ARTICLE 19, Global Cam paign for Free Expression. Having joined the ARTICLE 19 Law Program m e in 2001, he specializes in issues of freedom of expression and privacy, freedom of inform ation, broadcasting and new technologies, and has contributed to m any ARTICLE 19 publications. Before joining ARTICLE 19, he w orked w ith JUSTICE, the UK section of the International Com m ission of Jurists, w here he w as part of the privacy and EU crim inal policy team . So lo mo n Passy Solom on Passy is Foreign Minister of Bulgaria and w as Chairm an-inO ffice of the O SCE in 2004. Cathy Wing Cathy Wing is Director of Com m unity Program m ing at Media Aw areness Netw ork (MNet), a com m itted Canadian NGO in the field of educating young Internet users and developing online literacy. She m anages partnerships w ith parent and com m unity organizations, as w ell as creating resources for these sectors. Cathy’s career includes w orking in the film and television industries as project m anager and television new s producer.

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2004 Yearbook of the OSCE Representative on Freedom of the Media