Professor Lorna Woods from the University of Essex, and co-author of Steiner and Woods, EU Law, discusses new EU guidelines on freedom of expression.
The European Union Council recently established guidelines for freedom of expression. These guidelines, falling under the Foreign Affairs Council, are designed for application within the framework of the Union’s Common Foreign and Security Policy, similar to previous guidelines addressing issues like torture, capital punishment, and human rights advocates. While these guidelines take cues from the EU Charter and pertinent EU treaty clauses, they primarily draw upon provisions within the United Nations’ International Covenant on Civil and Political Rights (ICCPR), particularly the UN Human Rights Committee’s General Comment 34 on Freedom of Expression. The document includes a broader list of sources in the Annex. Notably, a gap exists between expectations the EU sets for others, especially potential Member States assessed against the Copenhagen criteria, and the recent actions of existing Member States like Hungary and the United Kingdom.
These Guidelines embody a conventional human rights framework concerning freedom of expression: a broad interpretation of freedom of expression, narrowly defined exceptions (drawing from Article 19(3) and Article 20(2) of the ICCPR addressing hate speech), and adherence to principles of legality, necessity, and proportionality. The Guidelines emphasize the importance of free speech, particularly a free media, in a democratic society. However, they also acknowledge the inherent value of speech for individual self-realization and autonomy, including identity development within society, beyond its instrumental role in seeking truth or political solutions. Despite this recognition, much of the specific content centers around journalism and media, underscoring their function as watchdogs over those in power.
The guidelines also underline the horizontal dimension of freedom of expression, particularly relevant in the context of the internet and social media, where expression is not limited to institutions and the media addressing a passive audience. This concept emphasizes the right of individuals to engage in dialogue and exchange perspectives, an aspect more prominently recognized by the Inter-American Court of Human Rights than in interpretations of Article 10 ECHR and Article 19 ICCPR. Despite this emphasis, the guidelines acknowledge the connection and potential tension between privacy and freedom of expression. Interestingly, the document seems to prioritize considerations of surveillance’s impact on speech over the tension between privacy and expression.
The guidelines highlight areas requiring immediate attention. Unsurprisingly, they prioritize ending impunity for those who target individuals, especially journalists and media personnel, for exercising their right to free expression. Beyond condemning such acts, the EU intends to urge relevant state actors to address both threats and acts of violence. If the EU takes action, it might encourage some governments to heed the UN General Assembly resolution on this matter and the Action Plan to end impunity. The guidelines’ tools section states:
“Abusive restrictions on freedom of expression and violence against journalists and other media actors should be taken into account by the EU when deciding on possible suspension of cooperation, notably as regards financial assistance.”
This idea has been circulating among those advocating against impunity for some time, but its practical application remains to be seen.
The Guidelines stress the importance of preventing laws from being used to stifle free expression and ensuring that media regulations promote, rather than restrict, freedom of expression. It’s worth noting that some points within this section exceed the regulatory standards required of EU Member States, specifically regarding the independence of regulatory bodies. While the EU’s communications package and data protection framework mandate independent regulatory bodies, such provisions are absent from the Audiovisual Media Services Directive. Additionally, there’s minimal transparency regarding media ownership, an area these guidelines aim to address.
The Guidelines further emphasize the significance of freedom of expression in cyberspace, particularly advocating for non-discriminatory internet access. Details regarding implementation remain limited, primarily expressing support for the multistakeholder model of internet governance outlined in EU strategies, rather than those articulated by the Internet Governance Forum or Netmundial, although the guidelines suggest future engagement with these entities. Acknowledging the role of private companies, the guidelines propose best practices reflecting the UN Guiding Principles on Business and Human Rights, as interpreted through the EU guidance note for ICT companies.
The primary action point, however, is international collaboration to establish best practices and uphold human rights in the export of technologies that could be used for surveillance or censorship by authoritarian regimes, although the document doesn’t address the United States in this context. The guidelines reiterate the importance of safeguarding against excessive surveillance and its detrimental effects on freedom of expression, specifying that EU action will involve promoting the exchange of good practices. This exchange is intended to ensure that state laws and procedures concerning communication surveillance and data interception are grounded in the rule of law, overseen by independent and effective domestic mechanisms, and adhere to international human rights obligations, including proportionality and necessity. Some Member States might need to reflect on their practices in this regard. While referencing Council Common Position 2008/944/CFSP on exporting specific military technologies doesn’t add much, the statement that the EU will ensure a structured and consistent approach to export controls for sensitive information and ICT items holds significant weight. However, the statement’s precise implications remain unclear. Does it, for instance, address concerns about mobile technology with built-in backdoors created at the behest of Western governments? The subsequent sentence focuses on technology specifically designed for surveillance or censorship, suggesting a much narrower scope.
Finally, the Guidelines incorporate provisions for evaluation, including a progress report to be delivered in three years. While some aspects align with global priorities, like concerns about violence against journalists, a topic high on the UN’s agenda, and widespread condemnation of mass surveillance, the EU’s advocacy for such behaviors rings hollow. This is especially true given that some of its Member States have, at best, an inconsistent track record in upholding these very principles.
Barnard & Peers: chapter 9, chapter 24