Joint Declarations - OSCE
Joint Declarationsof the representatives ofintergovernmental bodiesto protect free media andexpressionThe Representative onFreedom of the Media
Joint Declarations of the representatives of intergovernmental bodies to protect freemedia and expression; Ed. by Adeline Hulin. - Vienna: OSCE Representative on Freedomof the Media, 2013. - 87 pp.Joint Declarations of the representatives of intergovernmental bodies to protect freemedia and expression sets forth and chronicles the history and development of the JointDeclarations promulgated by the three, and now four special rapporteurs on free speechand expression of the Organization for Security and Co-operation in Europe, the UnitedNations, the Organization of American States and the African Commission on Humanand Peoples’ Rights.Design: red hot ‘n’ cool, ViennaEditor: Adeline Hulin 2013 The Representative on Freedom of the MediaOrganization for Security and Co-operation in Europe6 WallnerstrasseA-1010 Vienna AustriaPhone 43-1-51436-6800e-mail pm-fom@osce.orgISBN 978-92-9234-645-4
Joint Declarationsof the representatives ofintergovernmental bodiesto protect free media andexpressionVienna 2013The Representative onFreedom of the Media
Table of ContentsForewardDunja Mijatović5History of the Joint DeclarationsToby Mendel9History of the Offices13The Joint Declarations1999 – Freedom of Expression as a Fundamental Human Right192000 – Current Challenges to Media Freedom212001 – Challenges to Freedom of Expression in the New Century242002 – Freedom of Expression and the Administrationof Justice, Commercialisation and Freedomof Expression and Criminal Defamation272003 – On the Regulation of the Media andOn the Restrictions on Journalists302004 – On Access to Information and On Secrecy Legislation332005 – On the Internet and On Anti-Terrorism Measures372006 – On Publishing Confidential Information andOn Impunity in Cases of Attacks Against Journalists402007 – On Diversity of Outlet, On Diversity of Sourceand On Diversity of Content44
Table of Contents2008 – Defamation of Religions andOn Anti-Terrorism Legislation492009 – On the Media and Elections532010 – Tenth Anniversary Joint Declaration:Ten Key Challenges to Freedom of Expressionin the Next Decade572011 – Freedom of Expression and the Internet652012 – Crimes Against Freedom of Expression71The Rapporteurs81
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ForewordBy Dunja Mijatović1Dear Reader,This book contains the work of many people who are bound together by acommon characteristic: a passion and unflinching commitment to free media andfree expression.It is a chronicle of 14 years of expression of that commitment: the annual jointdeclarations of four leaders, the OSCE Representative on Freedom of the Media,the UN Special Rapporteur on Freedom of Opinion and Expression, the OASSpecial Rapporteur on Freedom of Expression, and ACHPR Special Rapporteuron Freedom of Expression and Access to Information. These media freedomadvocates have mandates from intergovernmental bodies across the globe toprotect and promote free media and expression.In a time of globalization, joint worldwide mechanisms defending the free flowof information are fundamental. The joint declarations are a great opportunity tospeak with a common voice.The joint declarations have proven to be a noteworthy example of internationalco-operation in the field of media-freedom advocacy. Every year since 1999,with the assistance of Article 19 and the Centre for Law and Democracy, theRapporteurs have met and issued a declaration restating freedom of expressionas a fundamental and internationally recognized human right stressing thenecessity of independent and pluralistic media for free and democratic societies,and recommending actions to strengthen free expression worldwide.Focusing every year on a particular threat to free expression, the declarationsreflect the evolution of media during a time marked by tremendous technologicalchange. Despite the opportunities created, such as digital broadcasting, newthreats have emerged. Full media freedom is still just a dream in most of thecountries around the world. The panoply of actions taken by governments tocurb free media and free expression is impressive – from criminalizing writingand speaking to shutting off access to government information to pressuring1 Mijatović was appointed Representative on Freedom of the Media of the Organizationfor Security and Co-operation in Europe in March 2010.5
Forewordjournalists to disclose their confidential sources – nations are seldom at a loss forcreative ways to retard media freedom.Violence against journalists remains a crucial issue. The number of journalistsmurdered, attacked and jailed has continued almost unabated. The problems mayvary from one country to another in scope and in substance, but in reality mediais still under assault, as are individuals’ right to express themselves without fear.The declarations are testimonies to the efforts undertaken by the four freedom ofexpression rapporteurs to address those challenges and to remind governmentsworldwide that their commitments to freedom of opinion and expression must bemaintained, defended and expanded, both online and off-line. The declarationsaddress a wide range of issues and warn of the threat of government interferencein the marketplace of ideas. By offering remedies to specific shortcomings, thedeclarations assist governments and provide guidelines for best practices in thefields covered.It is, therefore, a success that the joint declarations are being relied upon in anincreasing number of international settings, including the European Court ofHuman Rights2. The Court has referred to the declarations in its decisions whenreferring to the international and comparative law and practice. Recent examplesinclude cases involving guidelines on how to handle the publishing of classifiedinformation by a journalist and on the liability of a newspaper for republishingcontent posted on the Internet.National courts in OSCE participating States are also relying on the declarations.In June 2012, for example, the Supreme Court of the Republic of Chuvashiya inthe Russian Federation cited the Joint Declaration on Freedom of Expression andthe Internet when overruling a lower court decision against the owner of thenasvyazi.ru, an Internet portal.Reasons given by the court included the right to freedom of expression inArticle 10 of the European Convention on Human Rights and Article 19 of theInternational Covenant on Civil and Political Rights. The court also cited the“Declaration on Freedom of Expression and the Internet” adopted on 1 June2 See Editorial board of Pravoye Delo and Shtekel v. Ukraine, Stoll v. Switzerland6
Foreword2011 by the rapporteurs.3 The court concluded that, by holding the website’sowner liable for content, the lower court had not recognized the Declaration as aninternational norm that does not contradict national legislation.The Supreme Court noted that “holding the owner of a website liable is possibleonly according to reasons provided for by the general norms of civil legislation.”It also stated that the lower court had not cited legal norms that would requirewebsite owners to delete readers’ comments that others dislike. As a result, theowner of na-svyazi.ru was only ordered to upload a retraction drafted by theSupreme Court and keep it posted for no less than a year.In sum, I am pleased with the outstanding teamwork of the rapporteurs. I believethat our relationship through the years has resulted in enriching experiences andtrue progress in the field of free expression. I hope that will continue to hold true.I trust this compilation will be a valuable resource for journalists, lawyers, judges,scholars and human rights activists in their important work of promoting freemedia and free expression.3 Paragraph 2(a) of the Declaration says that “no one who simply provides technical Internet services suchas providing access, or searching for, or transmission, or caching of information, should be liable for contentgenerated by others, which is disseminated using those services, as long as they do not specifically intervenein that content or refuse to obey a court order to remove that content, where they have the capacity to do so.”Paragraph 2(b) of the Declaration says that “consideration should be given to insulating fully other intermediaries( ) from liability for content generated by others under the same conditions as in paragraph 2(a).” “At a minimum,intermediaries should not be required to monitor user-generated content and should not be subject to extrajudicialcontent takedown rules which fail to provide insufficient protection for freedom of expression.”7
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History of the Joint DeclarationsToby Mendel1The three and now, four special international rapporteurs (also known asmandates) on freedom of expression have adopted a Joint Declaration onfreedom of expression annually since 1999. The 13th such Joint Declaration waslaunched on 25 June 2012 in Port of Spain, Trinidad and Tobago. It addressed theissue of crimes against freedom of expression (i.e. attacks on those who exercisetheir right to free expression). This article looks at the genesis and development ofthe Joint Declarations.The first special rapporteur for the protection of freedom of expression, the UNSpecial Rapporteur on freedom of opinion and expression, was established bya resolution of the UN Human Rights Commission in March 1993,2 and the firstSpecial Rapporteur, Abid Hussain, from India, was appointed shortly thereafter.It was a momentous development in terms of the institutional structures for theinternational protection of freedom of expression, the first dedicated body toaddress this key human rights issue.This first international mandate was followed, some four years later, by thecreation of two further dedicated rapporteurs on freedom of expression. TheOffice of the Representative on Freedom of the Media of the Organization forSecurity and Co-operation in Europe was created in late 1997 by the PermanentCouncil of the OSCE,3 while the Inter-American Commission on Human Rights(IACHR) created the Organization of American States (OAS) Special Rapporteuron Freedom of Expression at its 97th Regular Session in October 1997. By late2008, both of these positions had been filled (respectively, by Freimut Duve andSantiago Canton).ARTICLE 19, the international freedom of expression organisation, decided itwould be a good idea to bring these three special mandates together for a faceto-face meeting which was held in London in November 1999. The purpose wasto foster an exchange of information and to promote co-operation between the1 Mendel is Executive Director of the Centre for Law and Democracy2 Commission Resolution 1993/45, 5 March 1993, para. 11.3 PC DEC No. 193, OSCE, 5 November 1997, para. 1.9
History of the Joint Declarationsmandates and to expose the mandate holders to a spectrum of NGO opinion towhich they might not otherwise have access.The initial meeting was a modest affair, bringing together the mandate holders anda few ARTICLE 19 staff, along with a few other interested groups and individualsbased in London. The discussions focused mainly on substantive freedom ofexpression issues the rapporteurs were facing in their respective regions, along withdiscussions about how they might be able to work together more closely.As Director of the ARTICLE 19 Law Programme, I was responsible for standardsissues. It became clear, as the discussions progressed, that one of the challengesfacing all of the mandate holders was the paucity of mechanisms for developinginternational standards on freedom of expression. There were, of course, theprimary texts, but these were by definition very brief and general in nature. Therewas also a growing body of international jurisprudence – from the UN HumanRights Committee and regional human rights courts and bodies – but this waslimited both by the relatively small (especially at that time) size of this body oflaw but also by the fact that it only addressed certain kinds of issues, namely thetypes of cases that individuals might bring before these bodies. Thus, while therewere quite a few defamation cases, there was little or no jurisprudence on issueslike the responsibility of the State to ensure diversity in the media or to respectthe independence of public broadcasters.There was also a body of so-called “soft law”, for example in the form ofresolutions and other statements from authoritative actors like the Committeeof Ministers of the Council of Europe. There were, however, three key limitationswith this body of standards. First, like the jurisprudence, it was limited in scope,focusing mainly on issues which the various actors felt were of overridingimportance. Second, there was a very distinct dominance of European standards,with very little coming from the rest of the world. Finally, in many cases, thestandards were quite conservative in nature, often representing a relatively safeelaboration of established jurisprudence of the European Court of Human Rights.It quickly became apparent that the special mandates were an ideal group tohelp address this problem. To take advantage of the coming together of theseeminent persons, I suggested that they work together to issue a Joint Declarationaddressing a number of freedom of expression themes. The suggestion wasreadily agreed upon and I quickly set about preparing a draft, which wasdiscussed and finalized the following day.10
History of the Joint DeclarationsOn 26 November 1999, the first Joint Declaration of the International Mechanismsfor Promoting Freedom of Expression was issued. At the time, there wasno suggestion that this would become an annual event, so the 1999 JointDeclaration addressed a wide range of themes that were deemed to be importantand missing from the wider body of international standard setting. These includedcalls for recognition of the right to information, the decriminalization of defamationand promoting an independent and pluralistic media.Another standard-setting exercise arising out of that first meeting has largelybeen lost in mists of time. This was the adoption in February 2000 of a StatementRegarding Key Issues and Challenges in Freedom of Expression. The Statement,which is 10 pages long, addresses a wide range of freedom of expressionissues, including public order and national security restrictions, criminal contentrestrictions and hate speech, defamation (civil and criminal), attacks on membersof the media, informal censorship, economic measures, privacy, gender issues,protection of sources, new technologies, state control over both public andprivate broadcasters, election reporting, minorities and children and strengtheningthe capacity of the mechanisms.The main driver for adopting the Statement was a desire to take maximumadvantage of the coming together of the three mandate holders. We did not knowwhen the mandates might come together again, or when we might have anotheropportunity to issue a statement like this, and so we wanted to cover as manyissues as possible. This explains the extraordinary breadth of the Statement, interms of topics covered. It also explains the delay in adopting it, as it naturallytook some time to prepare a document of that breadth.These documents, and in particular the Joint Declaration, received an immediateand extremely enthusiastic welcome from a range of actors interested inpromoting and understanding freedom of expression. This, in turn, led to variousdiscussions among us over the course of the year about a follow-up to both themeeting and the Joint Declaration. In due course, funds were raised so that theevent could be substantially expanded and more civil society representatives fromaround the world could participate.The result was a meeting on 29-30 November 2000, again in London, whichbrought together 26 experts and civil society activists from all regions of the worldto discuss key freedom of expression issues and to present their concerns. Theidea of Joint Declarations becoming an annual practice was starting to emerge in11
History of the Joint Declarationsour discussions. As a result, it was agreed in advance that the Joint Declarationfor that year would focus on two key themes, namely attacks on journalists(censorship by killing) and defamation.The 2000 meeting focused on the two Declaration themes and provided participantswith an opportunity to discuss the main concerns in their regions. It also provided themandate holders with an opportunity to discuss co-operation among themselves,which has increased steadily in practice since that time. The idea of issuing JointDeclarations on an annual basis was also firmly agreed at that meeting.Importantly, the 2000 meeting also provided an opportunity to discuss the ideaof expanding the number of mandates, most immediately by promoting theestablishment of an African mandate by the African Commission on Humanand Peoples’ Rights. That Commission adopted the Declaration of Principleson Freedom of Expression in Africa4 in 2002, and this was followed in 2004 by aresolution establishing the Special Rapporteur on Freedom of Expression (laterchanged to the Special Rapporteur on Freedom of Expression and Access toInformation in Africa).5The 2006 Joint Declaration was the first one adopted by all four specialmandates.Building on the 2000 meeting, Joint Declarations have been adopted annuallysince then, almost always with one or two key thematic focuses. An exceptionwas the 10th Anniversary Declaration, adopted on 3 February 2010, whichfocused on 10 key threats to freedom of expression over the coming 10 years,the Tenth Anniversary Joint Declaration: Ten Key Challenges to Freedom ofExpression in the Next Decade or the so-called 10-10-10 Declaration.Together, the 13 Joint Declarations represent an extremely important body ofinternational standards relating to freedom of expression. They are regularly reliedon not only by activists and academics and other standard-setting bodies, butalso by lawyers and judges. In this way, what might be termed “soft law” graduallymatures into hard law.4 A t its 32nd Ordinary Session, held in Banjul, Gambia, 17-23 October 2002.5 Resolution 71, adopted at the 36th Ordinary Session, held in Dakar, Senegal, from23 November to 7 December 2004.12
History of the OFFICESHistory of the OfficesMandatesThe OSCE Representative on Freedom of the MediaBackgroundThe task of the OSCE (Organization for Security and Co-operation in Europe)Representative on Freedom of the Media is to observe relevant mediadevelopments in OSCE participating States and, in close co-ordination withthe Chairman-in-Office, to advocate and promote full compliance with OSCEprinciples and commitments regarding freedom of expression and free media.Early warningIn this respect, the Representative assumes an early warning function andco-operates closely with the participating States, the Permanent Council, theOffice for Democratic Institutions and Human Rights, the High Commissioner onNational Minorities and, where appropriate, other OSCE bodies, as well as withnational and international media associations.Rapid responseThe Representative concentrates on rapid response to serious non-compliancewith OSCE principles and commitments by participating States. In case of seriousproblems caused, for instance, by obstruction of media activities and unfavorableworking conditions for journalists, the Representative seeks direct contactswith the participating States and other parties involved, assesses the facts andcontributes to the resolution of the issue.Collecting information on media situationThe Representative collects and receives information on the situation of themedia from all bona fide sources. Participating States and other interested parties(e.g. organizations or institutions, media and their representatives, relevant NGOs)may forward their requests, suggestions and comments related to strengtheningand further developing compliance with OSCE principles and commitments,13
History of the OFFICESincluding alleged instances of intolerance by participating States (hate speech).RestrictionsThe mandate directs that the Representative will not communicate with andwill not acknowledge communications from any person or organization whichpractices or publicly condones terrorism or violence.The Representative routinely consults with the Chairman-in-Office and reportson a regular basis to the Permanent Council, recommending further action whereappropriate.www.osce.org/fomThe OAS Special Rapporteur for Freedom of ExpressionThe Office of the OAS (Organization of American States) Special Rapporteurfor Freedom of Expression has a general mandate to carry out activities for theprotection and promotion of the right to freedom of thought and expression.This includes the following activities:14 Advise the IACHR (Inter-American Commission on Human Rights) inevaluating cases and requests for precautionary measures, as well as inpreparing reports. Carry out promotional and educational activities on the right to freedomof thought and expression. Advise the IACHR in conducting on-site visits to OAS member countriesto deepen the general observation of the situation and/or to investigate aparticular situation having to do with the right to freedom of thought andexpression. Conduct visits to OAS Member States. Prepare specific and thematic reports. Promote the adoption of legislative, judicial, administrative, or other typesof measures that may be necessary to make effective the exercise of the
History of the OFFICESright to freedom of thought and expression. Coordinate with ombudsmen’s offices or national human rightsinstitutions to verify and follow up on conditions involving the exercise ofthe right to freedom of thought and expression in the Member States. Provide technical advisory support to the OAS bodies. Prepare an annual report on the situation regarding the right to freedomof thought and expression in the Americas, which will be considered bythe full Inter-American Commission for its approval and inclusion in itsAnnual Report to the General Assembly. Gather all the information necessary to prepare the expression/docs/brochures/rapporteurbrochure web julio 13.pdfMandateThe Special Rapporteur is mandated by the Human Right Council resolution 7/36:(a) To gather all relevant information, wherever it may occur, relating to violationsof the right to freedom of opinion and expression, discrimination against, threatsor use of violence, harassment, persecution or intimidation directed at personsseeking to exercise or to promote the exercise of the right to freedom of opinionand expression, including, as a matter of high priority, against journalists or otherprofessionals in the field of information;(b) To seek, receive and respond to credible and reliable information fromGovernments, non-governmental organizations and any other parties who haveknowledge of these cases;(c) To make recommendations and provide suggestions on ways and means tobetter promote and protect the right to freedom of opinion and expression in allits manifestations; and(d) To contribute to the provision of technical assistance or advisory services by15
History of the OFFICESthe Office of the United Nations High Commissioner for Human Rights to betterpromote and protect the right to freedom of opinion and expression.Working methodsIn the discharge of his mandate the Special Rapporteur:a) Transmits urgent appeals and letters of allegation to Member States onalleged violations of the right to freedom of opinion and expression. The SpecialRapporteur summarises these communications as well as replies received fromGovernments in an annual report submitted to the Human Rights Council.b) Undertakes fact-finding country visits.c) Submits annual reports covering activities relating to the mandate to theHuman Rights Council and to the General Assembly (starting in 2010 for pinion/Pages/OpinionIndex.aspxThe ACHPR Special Rapporteur on Freedom of Expression and Access toInformationMandateThe African Commission on Human and Peoples’ Rights meeting decidedto appoint a Special Rapporteur on Freedom of Expression in Africa with thefollowing mandate: Analyze national media legislation, policies and practice within MemberStates, monitor their compliance with freedom of expression standardsin general and the Declaration of Principles on Freedom of Expression inparticular, and advise Member States accordingly. 16Undertake investigative missions to Member States where reports ofmassive violations of the right to freedom of expression are made andmake appropriate recommendations to the African Commission.
History of the OFFICES Undertake country Missions and any other promotional activity thatwould strengthen the full enjoyment of the right to freedom of expressionin Africa. Make public interventions where violations of the right to freedom ofexpression have been brought to his/her attention. This could be in theform of issuing public statements, press releases, urgent appeals. Keep a proper record of violations of the right to freedom of expressionand publish this in his/her reports submitted to the African Commission. Submit reports at each Ordinary Session of the African Commissionon the status of the enjoyment of the right to freedom of expression inAfrica.The African Commission on Human and Peoples’ Rights: Calls upon Member States of the African Union to take all necessarymeasures to ensure the protection of the right to freedom of expressionand to include information on measures taken to ensure the enjoyment ofthe right to freedom of expression in their periodic reports to the AfricanCommission. Submit reports at each ordinary Session of the African Commissionon the status of the enjoyment of the right to freedom of expression inAfrica. Urges Members States of the African Union to co-operate with and assistthe Special Rapporteur in the performance of his tasks and to provide allnecessary information for the fulfilment of his mandate. Invites its Members to incorporate the issue of freedom of expression intheir promotional activities to Members States. Requests the African Union to provide adequate resources, assistanceand support for the implementation of this Resolution.http://www.achpr.org/english/ info/free exp res 3.html17
COMMITMENTS18
DECLARATION 1999JOINT DECLARATIONbythe UN Special Rapporteur on Freedom of Opinion and Expression, theOSCE Representative on Freedom of the Media and the OAS SpecialRapporteur on Freedom of ExpressionLondon, 26 November 1999 We, the UN Special Rapporteur on Freedom of Opinion and Expression,the OSCE Representative on Freedom of the Media and the OAS SpecialRapporteur on Freedom of Expression, recall that freedom of expressionis a fundamental and internationally recognised human right and a basiccomponent of any democratic society. Independent and pluralistic media are essential to a free and opensociety and accountable systems of government. The current stateof free media in our member-states, although very different fromorganisation to organisation, is far from perfect. Certain governments, that belong to one or more of our organisations,have continued to harass media in their respective countries. The levelsof harassment might be different but the general aim is the same: tostomp out pluralism and open debate on issues of concern to citizens. Freedom of expression is not only a fundamental human right in and ofitself, but it has ramifications for economic development as well. Themedia has a “corrective” function by bringing to the public attentioncorruption and inequitable practices. Lack of a free media can often leadto economic stagnation and improper practises by both governmentsand businesses.19
DECLARATION 1999 We urge our participating states and the media in these countries torefrain from serious instances of intolerance, especially “Hate Speech.”Abid Hussain, UN Special Rapporteur on Freedom of Opinion and ExpressionFreimut Duve, OSCE Representative on Freedom of the MediaSantiago Canton, OAS Special Rapporteur on Freedom of Expression20
DECLARATION 2000JOINT DECLARATIONCurrent Challenges to Media Freedombythe UN Special Rapporteur on Freedom of Opinion and Expression, theOSCE Representative on Freedom of the Media and the OAS SpecialRapporteur on Freedom of ExpressionLondon, 30 November 2000Having met with representatives of NGOs, UNESCO, journalists’ associationsand human rights experts in London on 29-30 November 2000, under the auspices of ARTICLE 19, Global Campaign for Free Expression, assisted by CanadianJournalists for Free Expression;Recalling and reaffirming their Joint Declaration in London of 26 November1999;Noting the importance of regional mechanisms in promoting the right to freedomof expression and the need to promote such mechanisms in every region of theworld;Welcoming the recommendation of the African Commission on Human andPeoples’ RightsSeminar on Freedom of Expression and the African Charter that a Special Rapporteur or other mechanism on freedom of expression be established for Africa;Encouraging moves in the ASEAN and Asia-Pacific to develop regional mechanisms for the promotion and protection of human rights;Supporting the Inter-American Declaration of Principles on Freedom of Expression of the Inter-American Commission on Human Rights;Endorsing the ARTICLE 19 document, Defining Defamation: Principles on Freedom of Expression and Protection of Reputation;21
DECLARATION 2000Stating our intention to adopt a joint statement on racism and the media as partof the process of preparation for the World Conference Against Racism, RacialDiscrimination, Xenophobia and Related Intolerance;Adopt the following Declaration: Tw
Table of Contents Foreward Dunja Mijatović 5 History of the Joint Declarations Toby Mendel 9 History of the Offices 13 The Joint Declarations 1999 – Freedom of Expression as a Fundamental Human Right 19 2000 – Current Challenges to Media Freedom 21 2001 – Challenges to Freedom of Expres
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