By Heini Järvinen

The Council of the European Union adopted, to very little fanfare, an extensive document on freedom of expression on 12 May. The document seeks to identify and clarify a range of principles with regard to freedom of communication. In doing so, the Foreign Affairs Council has adopted a text of unusual clarity and scope which is a very valuable addition to the EU’s thinking on the whole range of fundamental rights issues.

In particular, the Guidelines stress that fundamental rights are interdependent. On this basis, it makes two important points also highlighted by in EDRi’s response to the public consultation which preceded the document. Firstly, it quotes Article 19 of the International Covenant on Civil and Political Rights (ICCPR), including its important, but often ignored, provision that restrictions on freedom of communication must be based on law.

Secondly, in sharp contrast to all of the obfuscation, delay and confusion in the discussions among national Justice ministers with regard to the revision of the European data protection package, the Foreign Affairs ministers are quite clear that privacy rights that exist in the offline world must also be protected in the online world. Importantly, it points out that it “is recognised that it can be relevant to consider data protection in the context of freedom of expression”. In that context, and in stark contrast to the United Nations Office On Drugs and Crime (UNODC), which has actively promoted breaches of international law on this point, the Foreign Affairs Ministers re-affirmed the principle in Article 17 of the ICCPR that no-one should be subject to arbitrary or unlawful interference with their privacy.

Impressively, the document is quite emphatic on the issue of circumscribing restrictions on freedom of communication as narrowly as possible. In particular, it stresses that any legislation that restricts freedom of opinion and expression

“must be applied by a body which is independent of any political, commercial or other unwarranted influence in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.” This contradicts the approach taken by every relevant part of the European Commission with regard to “voluntary”

law enforcement by private companies – most notably in its funding of initiatives such as the Clean IT Project, the CEO Coalition, the “dialogue on illegal uploading and downloading”, etc.

Of course, the Foreign Affairs Council adopted the text with a view to the foreign policy of the European Union. The question now is whether the European Commission will be held to the same high standards that the EU’s Foreign Ministers feel that countries outside of the EU should respect. The European Commission has been recklessly pushing “voluntary” upload and download filtering around the world, ostensibly in the name of child protection, without any evidence that these measures work, but with plenty of evidence that ill-intentioned regimes (Russia and Turkey being particularly notable in that regard) will use legal and political pressure to misuse filtering measures to silence dissent and restrict freedom of communication.

Despite its strong and helpful position on most issues, the text is sadly unclear on the issue of access to documents held by public bodies – a point that has been clearly supported unequivocally on a European and global level. On the one hand it is quite weak on the value to human rights of access to such documents although, on the other, it does commit the EU to support the adoption of freedom of information laws. The reasons for the incongruous weakness of this section in the document is probably explained by the Council’s and Commission’s far-reaching efforts to minimise access to documents, a situation which is continually worsening in the EU. The European Union urgently needs to get its own house in order and adopt best practice itself, in order to credibly call for a human rights supportive approach on an international level in the future.

Due credit for the Guidelines must also go to European Commission’s External Action Service and the EU High Representative for Foreign Affairs, Catherine Ashton.

Council Guidelines (12.05.2014)
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/142549.pdf

EDRi’s reponse to the public consultation on the EU guidelines on freedom of expression
http://edri.org/files/eeas_response.pdf

Global alliance against child abuse online
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/global-alliance-against-child-abuse/index_en.htm

UN Agencies: A growing threat for the Internet? (23.10.2012)
http://edri.org/un-threat-for-internet/

Clean IT (29.01.2013)
http://edri.org/rip-cleanit/

CEO coalition – the blind leading the bland (02.02.2013)
http://edri.org/ceo_coalition/

EU’s opposition to access to documents of public bodies
http://www.statewatch.org/analyses/no-240-restricted-documents.pdf

(Contribution by Joe McNamee – EDRi)