Governments Speak By Their Silence, Too: Part II

Published on August 8, 2016

(See Part I here.)

Max Steuer: Let us move to the global picture on freedom of speech. You edited a book titled Free Speech and Censorship around the Globe with several country case studies. Are there some generalizable conclusions that in your view emerge from these case studies?

Péter Molnár: It is not easy to answer this question because the country case studies offer a diverse picture of both encouraging and discouraging developments. In addition, the book cannot be comprehensive, it does not look at all countries and even regions. The overview chapters, and the chapters which focus on specific issues across countries, are diverse as well. I would like to highlight that the country case studies do not focus on the ‘usual suspects’, the longstanding democracies. Instead, they look at all sorts of countries. The examined issues in the case studies vary as well, from the chapter on Philippines which looks at the safety of journalists to the chapter on Russia which examines the interpretation of the freedom of the media by the Russian Supreme Court.

Does this variety mean that we cannot derive any generalizations on the global state of freedom of speech?

There are some generalizable points emerging in the two issues the book examines in more detail: access to information and responses to ‘hate speech’. For the former, access to information seems to be a growing powerful part of improving freedom of speech on a global scale, which is particularly demonstrated in the relevant chapters. Not by accident there is a chapter on the right to information in Latin America which played a leading role in this area, recognizing access to information as international human right in the Claude Reyes decision. This is a field where a broadening of communication rights seems to be observable.

In the latter area, that of responses to ‘hate speech’, I cannot define clear progress, in contrast to access to information. But I should add that perhaps access to information is in a way an easier subject. It includes difficult decisions on, for example, in which exceptional cases protecting state secrets is justifiable and necessary, but generally it is a simpler case in terms of theoretical foundations and related public policy. To put it simply, that we need to push for more transparency is something that can be agreed upon, while in the case of ‘hate speech’ it is such a dilemma that what shall we do. There are very strong arguments for content-based regulation, especially in environments which are more inflammatory and where the speech could build up a situation in which at some point imminent danger will be there. At the same time, it is hard to determine the role of speech in such an accumulating process, as speech elements themselves may not always build up imminent danger. The Rabat Plan of Action, analyzed in one of the chapters, attempted to deal with these difficulties. The Plan was developed in a special UN setting. I like that five parts of its Six Part Text focus on the context of speech and only one part is about the content, so it focuses on contextual analysis. But in my view, the intent part is problematic and needs more consideration as exceptional restriction to freedom of speech is justifiable not only in case of intentional incitement to hatred that causes imminent danger, but also in case of such incitement with reckless disregard.[1]

You see hope for progressive global development of freedom of speech. At the same time, according to some analyses, such as the recent Freedom House Report, there is a general decline of press freedom that applies to Central Europe as well. Connecting these findings to your point, does it mean that freedom of information is not effective enough to foster freedom of speech?

Even with all the Central European scepticism and sometimes pessimism, I still believe in progress and see signs of progress. I also think that what access to information which I mentioned as a positive, progressive element in the broader field of freedom of speech and of the press can balance out the negative tendencies which indeed, also exist.

What drives these tendencies and how significant they are? Because there are various arguments on the driving force—fear from freedom, shifting values and understanding of democracy of contemporary societies in some regions, just to name a few.

Yes, fear-driven policymaking is a big part of it. It is at least very likely that fear-driven policies are mistaken even when fear of terrorism and security threats lead to well-intended attempts to restrict freedom of speech and access to information in order to provide security. And there are also manipulative policies which use these arguments for security and against terrorism only as a pretext to take more control.

So we need to be very careful when we react to fear and security threats. It must be emphasized that freedom of speech and access to information are huge safeguards for security. Restricting these freedoms may seem to some as a cautious choice to avoid danger through paying a high price with limiting freedom of speech. However, the price of these restrictions includes reduced security because without these freedoms, the society becomes less knowledgeable, less able to understand issues, and therefore less protected and less safe.

What about Central Europe compared to the global picture?

In Central Europe, there is some obvious backlash. Miklós Haraszti analyzes it in his chapter. I hope it is temporary, and the diverse country case studies in the book provide a wider picture.  While in Central Europe, there seems to be a backlash, there is progress in Kenya in access to information. In Morocco, there is a very special situation after the Arab Revolution. So we can see that these trends are really contextual, and international law tries to bring together national and regional developments and policy efforts (which are made in good or bad direction), and one of the important questions is, whether international efforts can have some impact and if so, whether it can be progressive.

You mentioned international law, where the decisions of the European Court of Human Rights (ECtHR) are of great importance at least for the signatories of the Convention on Human Rights. On 16 June 16 2015, the Grand Chamber of the ECtHR announced its judgment in the case Delfi v. Estonia. This judgment in essence confirmed the chamber judgment from October 2014 that some commentators considered as a blow to free speech online. The dissenting opinions of two judges are critical of the majority's evaluation of the circumstances of the case, especially the duty to monitor user content and the low threshold it provides for regulation of content by news providers. What implications does this judgment have for standards of freedom of speech in your view, in particular in the member states of the Council of Europe?

In short, I agree with the dissent.[2] I hope that although the dissent is supported by a minority from a big bench, it will carry the majority of the public opinion in Europe.

The case is fascinating because it seems to reflect on an attitude which is in large majority of the national regulatory approaches to freedom of speech in Europe. The attitude is to regulate, usually with content-based regulation as opposed to regulation of ‘hate speech’ only when it creates imminent danger. What makes the decision in this case especially troublesome is that the regulation here is imposed on the online intermediaries who either do not know about the content for which they would be held responsible according to the majority of the Strasbourg judges, or they could meet this responsibility only if they set up a monitoring system which would be such a disproportionate restriction on freedom of speech that would be neither justifiable nor purposeful. 

Although the majority which voted for this mistaken decision tried to address a real problem, we must have a different solution to it, including that if in online comments instances of ‘hate speech’ are expressed, the internet provides the opportunity for responses, for counter-speech, too.

The hardest situation then arises when the comments can incite hatred in a way that they create imminent danger. How can we deal with that? The majority of the Court may say ‘we imposed liability on the intermediary because we cannot allow that comments incite imminent danger.’ In my view the solution to this situation is different: a working notice and take-down system. We have to count on the users, those who report instances of ‘hate speech’. I and some of my friends recently reported a page on Facebook that called for action against immigrants in Hungary.[3] Facebook decided to take off the page on this basis. It is an example that when the intermediaries receive notice about such comments, they have to act quickly.

So I do not think that making the intermediaries responsible for the content they do not create and do not have knowledge about without an overwhelmingly restrictive monitoring system, which most of them would not be able to set up anyway, is a solution.

In other words, we should avoid an Orwellian 1984 scenario here and focus on enhancing the possibilities for counter speech coming directly from the users of the internet.

Yes, along with enhancing notice and take down procedures which safeguard freedom of speech while provide for quick exceptional restriction of speech that creates imminent danger.

Thank you very much for all your answers.

Thank you very much.

[1] “Interview with Nadine Strossen”, in The Content and Context of Hate Speech: Rethinking Regulation and Responses, ed. Michael Herz a Peter Molnar (Cambridge: Cambridge University Press, 2012), 378-398.

[2] Joint dissenting opinion of Judges Sajó and Tsotsoria. Delfi v. Estonia.

[3] Facebook has several justifications for reporting content that should be removed according to the reporter, for example that it means a credible threat to minorities or is an instance of ‘hate speech’. The medium states that ‘While there is no universally accepted definition of hate speech, as a platform we define the term to mean direct and serious attacks on any protected category of people based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability or disease.‘