Expression Interrupted

Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.

David Kaye says it is “imperative” that all jailed journalists be released

David Kaye says it is “imperative” that all jailed journalists be released

The UN special rapporteur urges the government on World Press Freedom Day to take swift action to free journalists

 

This year’s Mehmet Ali Birand Lecture, an annual event organized by Punto24 Platform for Independent Journalism (P24) on World Press Freedom Day, was held online on 3 May amid COVID-19 pandemic. 

David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, delivered this year’s lecture, seventh since its inception, which is held in memory of late journalist Mehmet Ali Birand. Swedish Foreign Minister Ann Linde also participated in the event, which was co-organized by Consulate General of Sweden in Istanbul, with a video message. 

Kaye’s speech, titled “Pathogen or repression?”, delved on issues of freedom of expression and information under circumstances of COVID-19 pandemic, media freedom and the right to access information. 

Noting that hundreds of journalists remain behind bars in Turkey and elsewhere, the UN special rapporteur said the failure to release journalists from prison was one of the key issues facing journalism today. 

“No media worker should be in prison by reason of their work. And yet those journalists, subjected to arbitrary and unlawful detention, now face the additional risk of their health and lives,” Kaye said. “Whether States wish to frame their releases as humanitarian or not, it is imperative that all States release any journalists in their custody. It is critical that any State that continues to criminalize journalism, including under the guise of prohibiting defamation or countering terrorism, does not pursue such cases during the pandemic given the additional risk posed by detention.”

What Ahmet Altan knows too well 

Mentioning Ahmet Altan, a journalist and writer who has been in prison for 3.5 years and was the first keynote speaker of P24’s Mehmet Ali Birand Lecture seven years ago, Kaye said journalism’s role in communicating information to the public is essential. 

“The first person to deliver this lecture —Ahmet Altan— knows the following all too well: Journalism plays an essential role in the communication of information to the public, enabling individuals to exercise their rights to seek and receive information and to develop opinions about the public health threat so that they can take appropriate steps to protect themselves and their communities,” he said, adding that this was “indeed a moment to reinforce the fundamentally important role of a free, uncensored and unhindered media to self-governance.”

“Yet the pandemic has already exposed numerous threats to journalism, with an increasing number of reports indicating that Governments attack the messenger and limit reporting rather than act responsively on the information disclosed,” Kaye said. 

“In Turkey where P24 has estimated over 100 media workers are in prison the ongoing repression of journalism must end. Those detained must be released whether they are journalists, activists or other detained or their views whether they are fact finders, reporters or others. I urge the government to take the swift action to do so.” 

Describing political attacks on journalists as another key issue facing journalism today, Kaye said it was “impossible to forget the killing of Jamal Kashoggi in Istanbul by Saudi authorities, a killing for which there has been no accountability.”

Kaye concluded his remarks with a call for remaining vigilant against efforts to restrict the freedom of expression and information. He said: “I want to urge all who care about freedom of expression, all who care about a robust and independent media to be vigilant in protecting our right to information as much as P24 is. We must be vigilant in the face of government effort to use this crisis to expand their power. We must be vigilant in the face of our own self-censorship at a time of serious public health threat. And we must be vigilant in our continuing advocacy of the release of all journalists detained whether in Turkey or elsewhere around the world and demand that governments meet their obligations and not turn this pathogen into yet another tool of repression.”

Ann Linde: Free media basis of well-functioning society

Swedish Foreign Minister Ann Linde highlighted the importance of media freedom and freedom of expression for the society but she noted that many governments around the world have taken steps to limit freedoms amid the pandemic. 

"The coronavirus pandemic has had a global impact in so many ways. Too many governments around the world have taken this opportunity to limit freedom, to control information and extend their own power. Freedom of the media, freedom of expression and freedom of thought form the basis of not only a well-functioning democracy but also a well-functioning society as a whole,” Linde said in her remarks. 

She also said Sweden has “a long track record of supporting free media, independent journalists, human rights and civil society in Turkey through our consulate general in Istanbul and through SIDA in Ankara. You know you can count on us."

Cemre Birand, writer and widow of Mehmet Ali Birand, also participated in the online event with a video message. A video recording of the event with Turkish subtitles will be published on P24’s YouTube channel in the coming days.  

Full text of UN Special Rapporteur David Kaye’s speech at the event is as follows: 

 

 

Pathogen or repression?

David Kaye 

 

“How can you have an opinion if you are not informed?” 

In 11 words, the political philosopher Hannah Arendt summed up the theory connecting article 19 (1) of the International Covenant on Civil and Political Rights, which protects everyone’s right to hold opinions without interference, with the guarantee, in article 19 (2), of everyone to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media. She also noted: “If everybody always lies ... nobody believes anything any longer. ... And a people that no longer can believe anything cannot make up its mind. It is deprived not only of its capacity to act but also of its capacity to think and to judge. And with such a people you can then do what you please.”

Hannah Arendt knew of what she spoke. A scholar of totalitarianism forced to flee Nazi Germany, she presented intersecting and fundamental principles of human rights law – the rights to opinion, expression, access to information, autonomy, self-governance – in much the way that the Covenant and the Universal Declaration of Human Rights promote democratic values and protect human life. While she had in mind the kind of propaganda that facilitates authoritarianism, her point extends to all nature of government practices that interfere with the individual’s ability to develop informed opinions and to take action consistent with those opinions. At this particular moment in history, we all can see exactly what she had in mind, and why the drafters of the Covenant, and of the Declaration 20 years before it, believed it essential to guarantee expression. 

We are now living in a time of pandemic. Let’s be hopeful that it shocks the global public into recognition of the need for international coordination and cooperation, that it serves as a jolting wake-up call that censorship of all sorts interferes with a range of human rights, that promoting access to information bolsters the promotion of health, life, autonomy and good governance, and that restrictions – even where aimed towards a legitimate objective – must meet the standards of legality, necessity and proportionality. 

But too often today we see opportunism, consolidation of authoritarian power and disproportionate use of executive authorities. We see a pathogen of disease acting also as a pathogen of repression. Seen from this perspective, the pandemic is a crisis of free expression – naturally caused but facilitated by information policies that weakened the infrastructures of warning and reporting. Individuals and their communities, however, cannot protect themselves against disease when information is denied to them, when they have diminished trust in sources of information, and when propaganda and disinformation dominate the statements of public authorities.

Let me begin with some generalities:

Pandemic and the freedom of expression

The World Health Organization’s general guidance for dealing with information in the context of pandemics is consistent with the requirements of international human rights law. It highlights the importance of the State providing reliable information to the public. As important as it is, it does not answer some of the most pertinent questions concerning the freedom of opinion and expression during a pandemic: What are the State’s obligations when it comes to keeping the public educated about the pandemic? To what extent may the public have access to information concerning the pandemic? May a State impose restrictions to ensure that the public receives only “legitimate” information sanctioned by government authorities? May a State impose restrictions on the media concerning the reporting of the pandemic? 

International human rights law, especially that related to freedom of expression, goes hand-in-glove with public health. Article 19 (2) of the ICCPR robustly defines freedom of expression as one that is multidirectional, unlimited by viewpoint, without boundaries, and open-ended in form. Article 19 (3) allows for narrow grounds on which Governments may restrict the freedom of expression, requiring that any limitation be provided by law and be necessary for respect of the rights or reputations of others, or for the protection of national security or public order, or of public health or morals. That is, such limitations must meet the tests of necessity and proportionality and be aimed only towards a legitimate objective. 

First, it is well established that, under the “provided by law” standard, not only must the law be clearly set out, but also the scope, meaning and effect of the law must be sufficiently clear to allow individuals to regulate their actions so as to avoid violation. Those standards apply with the same force in the context of public health emergencies.

Second, under the necessity principle, when a State invokes a legitimate ground for restriction of freedom of expression, it must establish a direct and immediate connection between the expression and the threat said to exist. It is the State’s obligation to demonstrate necessity, not a complainant’s obligation to demonstrate its failure. Necessity implies proportionality, according to which restrictions must target a specific objective and not unduly intrude upon other rights of targeted persons, and the ensuing interference with third parties’ rights must be limited and justified in the light of the interest supported by the intrusion.

The principles of legality, necessity and proportionality apply across the board; they are not simply discarded in the context of efforts to address the public health threat of COVID-19. To the contrary, they apply with great force because of the extraordinary value that the Covenant places on free expression and because they also advance public health policies. 

The Human Rights Committee emphasized that it could never become necessary to derogate from the freedom of opinion during a state of emergency. Given the importance of information and freedom of expression to the development of opinion and to the efforts to address the public health crisis, States should also avoid any derogation from their obligations under article 19 of the Covenant. Article 19 (3) already provides sufficient grounds for necessary and proportionate restrictions of article 19 (2) rights, to protect public health. Moreover, in accordance with article 4 of the Covenant, even in the context of a declared public emergency which threatens the life of the nation, measures derogating from a State party’s obligations under the Covenant must be limited to the extent strictly required by the exigencies of the situation and, as under the normal application of article 19, cannot involve discrimination or other violations of other international legal obligations, and they must be temporary. 

Let me turn to four challenges, not exhaustive but ones of real concern.

 

1. Access to information held by public authorities

Article 19 of the Covenant has been interpreted to include a right of access to information held by public authorities. The default position must be that public authorities do not wait for a request for information; they must have an affirmative policy of releasing all relevant information in ways that are understandable to a non-technical public and that advance public health priorities. 

My predecessor, Frank La Rue, noted that the design and implementation of freedom of information laws should be guided by principles of: (a) maximum disclosure; (b) obligation to publish; (c) promotion of open government; (d) limited scope of exceptions; (e) processes to facilitate access; and (f) disclosure taking precedence over exceptions. Article 19, the free expression NGO, described the underlying purposes well: “Information allows people to scrutinise the actions of a government and is the basis for proper, informed debate of those actions.” 

A public health threat strengthens the arguments for open government, for it is only by knowing the full scope of the threat posed by disease that individuals and their communities can make appropriate personal choices and public health decisions. A Government that deprives the public of reliable information puts individuals at risk and can justify such deprivation only on the narrowest grounds and with the greatest degree of necessity to protect a legitimate interest. 

One of the mechanisms used by Governments to ensure public access to information is to provide media access to officials, documentation and other information resources. This may include regular press briefings in which public health and other officials provide detailed information to the public and answer questions from an independent media. Unfortunately, there have been reports of several instances involving direct interference with this mode of actively providing access to information. These types of restrictions tend towards closing off access to reliable information, disabling independent journalists from addressing questions to officials and thus clarifying public health orders, and limit the ability to hold officials accountable for decisions made during the pandemic.

The openness of government to media is especially important when public officials provide inconsistent, unclear or otherwise confusing information to the public. The goal in a public health crisis must be for government to provide accurate information, or information that is as accurate as possible and framed appropriately as uncertain or evolving, and clear and honest guidance. As the WHO has noted, risk communication is a two-way street. The media provide an essential tool for governments to understand the concerns of the public, and for the public to understand how to manage their concerns and fears; limiting access limits this crucial element of information-sharing.

2. Access to the Internet

In a moment of global pandemic, the right of access to the Internet should be restated and seen for what it is: a critical element of health-care policy and practice, public information and even the right to life. Indeed, an open and secure Internet should be counted among the leading prerequisites for the enjoyment of the freedom of expression today. Yet Governments have resorted increasingly to the bluntest forms of denial of access to information via the Internet, knowing that digital tools have become an essential – if not, for many, the essential – tool for the enjoyment of the right to seek, receive and impart information. Turkey has not been immune to this kind of repressive action with blunt censorship, the blocking of Wikipedia the most obvious if not the only example, too often a tool of information management. 

Given the migration of all manner of essential services to online platforms, shutdowns not only restrict expression but also interfere with other fundamental rights. In the context of the pandemic, it has been especially troubling to observe the continuation of several instances of Internet shutdowns. The most prominent has been the long-term disruption that the Government of India has imposed on Kashmir. In 2019 the Government imposed what several mandate holders found to be “a form of collective punishment of the people of Jammu and Kashmir, without even a pretext of a precipitating offence”. But India has not been alone. The Government of Ethiopia imposed a shutdown of Internet services in the Oromia region in the beginning of 2020, reportedly promising only at the end of March to end the shutdown. Bangladesh imposed an Internet blackout affecting Rohingya refugees from Myanmar, prompting 50 organizations to call for a lifting of the blackout in the face of the COVID-19 pandemic. The persistence of Internet shutdowns in parts of Myanmar continues to be of serious concern, particularly in light of COVID-19. 

Internet shutdowns are an affront to the freedom of expression that every person is guaranteed under human rights law. Internet shutdowns during a pandemic risk the health and life of everyone denied such access – and that of others with whom they come in contact. There is no room for limitation of Internet access at the time of a health emergency that affects everyone from the most local to the global level.

3. Protection and promotion of independent media 

The first person to deliver this lecture —Ahmet Altan— knows the following all too well: Journalism plays an essential role in the communication of information to the public, enabling individuals to exercise their rights to seek and receive information and to develop opinions about the public health threat so that they can take appropriate steps to protect themselves and their communities. This is indeed a moment to reinforce the fundamentally important role of a free, uncensored and unhindered media to self-governance. It is something the Human Rights Council and General Assembly have repeatedly emphasized. Yet the pandemic has already exposed numerous threats to journalism, with an increasing number of reports indicating that Governments attack the messenger and limit reporting rather than act responsively on the information disclosed. In Turkey where P24 has estimated over 100 media workers are in prison the ongoing repression of journalism must end. Those detained must be released whether they are journalists, activists or other detained for their views whether they are fact finders, reporters or others. I urge the government to take the swift action to do so. 

So here are some of the key issues facing journalism today. One I alredy mentioned:

Failure to release journalists from prison. The Committee to Protect Journalists has stated that more than 250 journalists are currently in prison. No media worker should be in prison by reason of their work. And yet those journalists, subjected to arbitrary and unlawful detention, now face the additional risk of their health and lives. Whether States wish to frame their releases as humanitarian or not, it is imperative that all States release any journalists in their custody. It is critical that any State that continues to criminalize journalism, including under the guise of prohibiting defamation or countering terrorism, does not pursue such cases during the pandemic given the additional risk posed by detention.

Over the long term, it is also critical that States repeal any laws criminalizing journalism, including those adopted under the guise of addressing terrorism or defamation under other categories. In a 2002 joint declaration, freedom of expression monitors of the United Nations, the Organization for Security and Cooperation in Europe and the Organization of American States stated that “all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws”. The Human Rights Committee, in its general comment No. 34 (para. 47), also urged States parties to consider the decriminalization of defamation, and noted that, in any event, imprisonment was never a proportionate penalty for defamation. 

Police intimidation of journalists. Numerous reports from around the world indicate growing intimidation of journalists reporting on the pandemic, detention and questioning of journalists, and other forms of repression of media workers and human rights defenders conducting fact-finding inquiries concerning COVID-19. That intimidation must stop.

Political attacks on journalists. The full protection of journalists cannot properly be achieved amid a culture that devalues free expression and denies respect to people who seek to exercise freedom of expression. There have been persistent attacks on journalists and civil society figures in the past few years, such as those arising in Turkey, the United States of America, Hungary, Thailand and the Philippines. Of course, in that context it is impossible to forget the killing of Jamal Kashoggi in Istanbul by Saudi authorities, a killing for which there has been no accountability.

Lack of an enabling environment for media work. Given the essential role of media workers, Governments should be enabling them to continue their work, including, where appropriate, by classifying it as essential. When conducting their work, media workers should be provided with protections deemed necessary in the pandemic, such as protective masks and other relevant gear. An enabling environment also involves the holding of open press conferences that include independent media and ensuring that all media outlets, not just State-owned media, have access to public officials and other information sources.

Lack of protection of access for foreign journalists. The global nature of the COVID-19 crisis militates in favour of ensuring reporting that is available across borders. In particular, this means that Governments should not take steps to interfere with reporting from the international press. Unfortunately, there have been several reported instances of hostility directed by Governments at foreign press representatives. 

4. Public health disinformation 

The Director-General of the WHO has noted that “fake news spreads faster and more easily than this virus, and is just as dangerous”. WHO calls it an “infodemic”, which involves “the rapid spread of information of all kinds, including rumours, gossip and unreliable information”. Public health authorities around the world have been legitimately concerned about disinformation during the COVID-19 pandemic. Unreliable information, particularly when disseminated by individuals with significant platforms, can cause grave harm, whether maliciously intended or not. WHO has stated that “successful management of infodemics will be based on (1) monitoring and identifying them, (2) analysis of them, and (3) control and mitigation measures”. 

The thrust of the WHO guidance emphasizes risk communication, including engagement with rumours in order to correct them. This general guidance, silent on whether prohibiting false information is legitimate, nonetheless suggests consistency with the position taken by human rights monitors and experts. The principles of legality and necessity should be applied to any approach to disinformation. In particular, “disinformation” is an extraordinarily elusive concept to define in law, susceptible to providing executive authorities with excessive discretion to determine what is disinformation, what is a mistake, what is truth. 

Moreover, as emphasized in a recent joint statement issued by freedom of expression monitors of the United Nations, the Organization for Security and Cooperation in Europe and the Inter-American Commission for Human Rights, “any attempts to criminalise information relating to the pandemic may create distrust in institutional information, delay access to reliable information and have a chilling effect on freedom of expression”. In other words, the penalization of disinformation is disproportionate, failing to achieve its goal of tamping down information while instead deterring individuals from sharing what could be valuable information.

While much of the public discussion concerning false pandemic information concerns the steps government and private companies should take to remove such information or punish those who spread it, it is important to begin with government itself. Unfortunately, there are numerous instances of State actors disseminating unverified and often reckless claims about the origins of the COVID-19 virus, the responsibility for the pandemic, the presence or extent of COVID-19 in their country and the availability of drugs to counter the symptoms, and other harmful assertions. Such claims, which are always, sooner or later, shown to be false, undermine trust in government sources of information, which in turn may generate such public distrust that it becomes difficult for public health authorities to promote effective and proven policies.

Disinformation concerning the COVID-19 pandemic are circulating in traditional and social media worldwide. Some pertain to troubling political blame games, relating mainly to inter-State disputes, and are not conducive to the kind of international cooperation necessary to meet the challenge of the pandemic. Other forms may be more dangerous, such as information related to quarantines, purported health-care advice and other unverified claims that, if widely pursued, could cause harm to the health of individuals. Any government efforts to counter such disinformation should be based on the principles outlined above: full, honest and evolving communication with the public, the promotion and protection of an independent press, and the careful and public correction of misinformation that could lead to public health harm. Beyond the pandemic, States should take steps to ensure an enabling environment for independent media and educational settings that promote media literacy and otherwise give individuals critical-thinking tools to distinguish between verifiable and unverifiable claims.

In the brief period since the COVID-19 outbreak and transformation into a pandemic, a number of States have adopted laws purportedly aimed at sanctioning disinformation concerning the pandemic. Some such laws may legitimately be aimed at protecting privacy rights with respect to a person’s infection status. Those provisions must be consistent with the standards set out in article 17 of the Covenant. In general, however, the approach should reflect the aspects referred to by the Human Rights Commissioner of the Council of Europe, Dunja Mijatovic, when she urged Council of Europe member States to ensure that “measures to combat disinformation re necessary, proportionate and subject to regular oversight, including by Parliament and national human rights institutions. Measures to combat disinformation must never prevent journalists and media actors from carrying out their work or lead to content being unduly blocked on the Internet. Those countries which have introduced restrictions that do not meet these standards must repeal them as a matter of urgency.” 

The 2017 joint declaration of freedom of expression monitors made clear that general prohibitions on the dissemination of information based on “vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’ are incompatible with human rights law and should be abolished”. Vague prohibitions of disinformation effectively empower government officials with the ability to determine the truthfulness or falsity of content in the public and political domain, in conflict with the requirements of necessity and proportionality under article 19 (3). 

Private search engine and social media companies are justifiably under significant pressure to ensure that they do not enable potentially harmful public health disinformation to circulate on their platforms. Several have already taken aggressive steps to address misinformation about the COVID-19 virus. Many have developed approaches to ensure that, whenever a person searches for information related to the disease, an early search result includes verified information from a public health authority. Others are reinforcing their existing policies, for instance by removing content that may “discourage people from seeking medical treatment or claim that harmful substances have health benefits”. Twitter is expanding its definition of “harm” to include “content that goes directly against guidance from authoritative sources of global and local public health information.”  One analyst found that platforms were taking “an unusually aggressive approach in removing misinformation and other exploitative content and boosting trusted content”, like information from WHO. At the same time, public health measures such as social distancing have led companies to drastically reduce their content moderation workforce, leading to an increase in the use of tools of automation – and the admission of likely mistakes.

As has been evident during the COVID-19 pandemic, social media and search engine companies have an enormous impact on public discourse and the rights of individuals on and off their platforms. There is potential for mistakes, particularly in the context of the emphasis on tools of automation, that could cause significant public health harms. Such harm could be caused by, among other things, the take-down of verified and beneficial public health information, which thereafter attracts a negative reputation because of the initial takedown, or a failure to remove content or users sharing unverified information that could lead to health risks. There is also the potential for viewpoint discrimination. Thus, when addressing issues such as the posting of information about public protests inconsistent with governmental guidelines during the pandemic, social media companies should ensure that their policies apply to all such gatherings and do not discriminate on the basis of the protesters’ viewpoints. These responsibilities are heavy, and it is particularly difficult for companies to do their required human rights due diligence when their employees are unable to hold regular meetings, dispersed because of public health policies. Nonetheless, that responsibility persists, especially during the pandemic.

In seeking to meet their responsibilities to prevent or mitigate human rights harms during the pandemic, it is essential that the companies conduct ongoing due diligence to determine the impact their content policies are having on the rights to health and to life. Given the nature of the public threat, they should aim towards maximum transparency of their policies and engage, on an urgent basis, not only with public health authorities but with affected communities wherever they operate. They should especially review their policies and practices to ensure that content moderators are available as soon as possible to review COVID-19 information, as reliance solely on automation may have a deleterious impact on health and human rights (see A/73/348). 

In conclusion, I want to urge all who care about freedom of expression, all who care about a robust and independent media to be vigilant in protecting our right to information as much as P24 is. We must be vigilant in the face of government effort to use this crisis to expand their power. We must be vigilant in the face of our own self censorship at a time of serious public health threat. And we must be vigilant in our continuing advocacy of the release of all journalists detained whether in Turkey or elsewhere around the world and demand that governments meet their obligations and not turn this pathogen into yet another tool of repression.

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