Peter Noorlander on media and terrorism: Reykjavik, 29th May 2009

Madam Chair, distinguished representatives,

I would like to thank the Icelandic government for hosting this event, and the Dutch government for consistently encouraging debate on the topic of my intervention – the impact of anti-terror laws on media freedom – and ensuring there would be space on the agenda of the ministerial meeting for discussion of this important topic.

I stand before you as the representative of the civil society forum on media freedom and terrorism that was held on May 27, just upstairs from the CDMC preparatory meeting. We had an interesting exchange of ideas.

I found our meeting was a very worrying one – it revealed that counter-terror laws have had an even more negative impact on media freedom than I had previously been aware of. And I work in the field. We heard that long-established liberal democracies were enacting laws and engaged in practices that set a very poor example indeed for the rest of the world; while newer democracies are at risk of losing their hard-won freedoms and sliding back into the bad practices of old.

The Council of Europe, too, the guardian of human rights and freedoms, has at times lost its way. What has happened is this.   

Over the past few years, we’ve seen two very distinct strands of activity at the Council of Europe and within its member states.

On the one hand, the Council of Europe’s Committee of Ministers has consistently adopted very helpful standards on media freedom, including on the protection of media in times of crisis. To do this, it has relied for inspiration on well-established caselaw of the European Court of Human Rights and on decades of its own experience. The 2005 Declaration on Freedom of Expression and Terrorism is a good example. It states, very clearly – in its first operative paragraph, even – that States should

not … introduce any new restrictions on freedom of expression and information in the media unless strictly necessary and proportionate in a democratic society and after examining carefully whether existing laws or other measures are not already sufficient;

…respect, in accordance with Article 10 of the European Convention on Human Rights and with Recommendation No. R (2000) 7, the right of journalists not to disclose their sources of information; the fight against terrorism does not allow the authorities to circumvent this right by going beyond what is permitted by these texts;

to respect strictly the editorial independence of the media, and accordingly, to refrain from any kind of pressure on them; ...

Texts such as these represent the gold standard for media freedom and set an example not just in Europe, but around the world. I know from my own experience that Council of Europe standards have been inspirational to international courts in Africa, the Americas and at the United Nations. They send a very clear signal: these are the minimum standards on media freedom; do not fall below them.

We have also seen a very positive momentum in the area of access to information, culminating in the adoption of the Council of Europe Convention on Access to Official Documents. This very important Convention will be opened for signature on June 17 and I urge all Member States to sign it. 

Yet, at the same time, from other parts of the Council of Europe, very different signals have been sent. The Council of Europe Convention on the Prevention of Terrorism, adopted in 2005, requires its signatories to outlaw not only direct “incitement” to terrorism but any “public provocation” of terrorism, when that might “cause a danger” that a terrorist act “may be committed”. Similarly, the Cyber Crime Convention, which was adopted in November 2001, and was essentially marketed as a weapon in the fight against terror, requires its signatories to increase their surveillance capabilities. Similar noises were coming from the EU, which drove the data retention movement – which Sweden is still heroically opposing – and the UN Security Council, which has insisted on restrictions on inciting terrorism.

While all these international organisations and conventions also require respect for human rights, the emphasis is very much on the need to adopt tougher measures to fight terrorism.

It is clear which signal has been the more powerful one.      

Since 2001, member States of the Council of Europe have rushed to adopt laws and introduce practices that have restricted media freedom to an ever greater extent. The result of this has been a censorship and self-censorship in the media not only in Europe, but in countries around the world which have taken their lead from Europe and the US – but with the notable difference that what they see as “fighting terrorism” really comes down to the suppression of legitimate dissent.

What an example our counter-terror laws have set. We have gone from being leaders in setting standards in human rights and democratic values to leading the way in restricting dissent and silencing independent voices. Even the European Court has occasionally been sucked along – in Leroy v. France it found no fault with the conviction of a cartoonist who did no more than criticise (harshly, admittedly) what he saw as US imperialism; and in Sanoma v. the Netherlands, the Court regretted the “lack of moderation” of Dutch police who had enthusiastically ransacked a newspaper office but ultimately found no violation of the right to freedom of expression. This led the dissenting judge Power to remark that the judgment “sends out a dangerous signal to police forces throughout Europe, some of whose members may, at times, be tempted to display a similar “regrettable lack of moderation”.

It is precisely this, what the Court judiciously called “lack of moderation”, but which I would have less cautious but sadly unpublishable words for, that has typified the way in which police and security agencies in Europe and further afield have employed counter-terror laws against the media. The Council of Europe last year commissioned a report from David Banisar that catalogues dozens of instances in which counter-terror laws have been misused or roundly abused. I do encourage you all to read it if you haven’t already. No country seems to be without blame: In Germany, the Federal Intelligence Agency has been spying on journalists and has placed spies in newsrooms to identify sources; in the Netherlands, the government monitored telephones at De Telegraaf newspaper in an attempt to determine the sources for a story, then arrested and jailed journalists when the surveillance failed to identify the sources; in the UK, reporters have been arrested for publishing allegedly classified documents relating to the shooting of the Brazilian electrician, Jean Charles de Menezes, in the London underground; while in Russia, the law against extremism has been used to keep episodes of the cartoon series Southpark off the air. 

We’ve also seen many new anti-terror laws adopted, in Russia, in Turkey, in the UK, in Sweden, and elsewhere, in apparent defiance of insistency by this body – the Committee of Ministers standards prepared by CDMC –that no such new laws should be introduced unless they were absolutely necessary and existing laws are insufficient to counter the threat.

The last two years has seen increasing concern among various international human rights bodies who have called for change. The UN Human Rights Committee (not to be confused with the very politicised Human Rights Council), the UN Committee on Economic Social and Cultural Rights and the International Commission of Jurists have all called for a wholesale review of states anti-terror laws. I would like to draw particular attention to the Parliamentary Assembly’s Declaration 1636 of October 2008, which calls for a review of all national laws and practices that impact unduly on freedom of expression.

In light of these calls, we, members of the Forum on Anti-terrorism legislation and its impact on freedom of expression and information, thoroughly welcome the commitment of Council of Europe member states to review the impact of anti-terror laws and measures on freedom of expression and media freedom in the Declaration adopted today.

There has been a rush to adopt anti-terror laws in the aftermath of 9/11, which has undermined respect for human rights and the rule of law.

There has been a general extension of surveillance powers over citizens and their personal communications, and police and security agencies have been empowered to monitor and intrude upon the professional activities of journalists and media. This seriously impedes their ability to report on matters of public interest.

We are also highly concerned that anti-terror laws have been poorly drafted, and the restrictions they have placed on the media and civil society have been arbitrary and open to abuse. These laws and their implementation by the state administration have compromised civil liberties and undermined respect for the rule of law.

There is scant evidence that the increased security for which these laws were enacted has been achieved. But there is clear evidence of the negative impact of counter-terror laws on freedom of expression and access to information, as well as instances of abuse and misuse of counter-terror laws.

A particular feature of the recently enacted legislation is that the laws have been rarely used for the purposes for which they were ostensibly enacted. This brings into question their necessity and whether or not they were rational and proportionate for the purpose for which they were enacted. Instead they have resulted in censorship and self-censorship, to the detriment of society’s right to be informed.

The civil society forum reaffirms its belief that human rights must be central in the maintenance of democratic society and confirm our confidence in the Council of Europe as the guardian of human rights and justice in Europe. 

We therefore welcome the call for a review at national level of all laws, regulations and practices that have been put into effect to counter terrorism and in the name of national security. To be meaningful and effective, this review should be:

• Urgent;
• Wide-ranging;
• Transparent and inclusive of all stakeholders including civil society and media groups and professionals;
• Completed within a clear deadline, and at the latest one year from now;
• Use existing Council of Europe standards on media freedom as the benchmark against which laws, regulations and practices are reviewed.

We do not want you to spend the next year discussing which benchmarks will be used for review. It is obvious – the benchmarks are staring you in the eye.

We call on all governments to act quickly to restore the public’s confidence in security policies that will respect their rights.