Strasbourg, 17 November 2011

CDMC(2011)021Rev
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STEERING COMMITTEE
ON THE MEDIA AND NEW COMMUNICATION SERVICES

(CDMC)

______

 

CDMC comments on Parliamentary Assembly Recommendation 1983 (2011)
Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations (hereinafter the Parliamentary Assembly Recommendation)

1. The CDMC welcomes this Parliamentary Assembly Recommendation. The withholding of information by the state, limiting access to it or restricting its dissemination may well raise issues under Article 10 of the European Convention on Human Rights which guarantees freedom of expression and the right to receive and impart information. Depending on the circumstances, this may amount to an interference with the exercise of the rights in question. In order for an interference to be legitimate, it must be prescribed by law and be a proportionate response to a pressing social need related to the limited exceptions set out in article 10 of the European Convention on Human Rights as interpreted by the European Court of Human Rights.
2. The Parliamentary Assembly Recommendation is a convincing reminder that the state is there to serve the people and not the other way round, or in other words, “government of the people, by the people, for the people”. Where the cloak of secrecy is used to cover violations of human rights not only have state authorities failed to live up to their duty to protect the rights of their citizens but also democracy and rule of law are seriously in danger. This is not less so when extensively broad assertions of the notions of state secrecy extend to information or data on which the public has a legitimate interest of disclosure.
3. In a democratic society people have the right to know how state authority is exercised and how they are governed. This is essential for their ability to form opinions, make choices and participate in deliberation and decision-making processes. State authorities’ legitimate interests to keep information secret must be weighed against the people’s right to know.
4. National security and fight against crime, on one hand, and freedom of expression, on the other hand, are not irreconcilable. The rule of law is essential for both people’s right to know and national security. This approach is part of the Council of Europe policy and should be further reinforced. The ministers of states participating in the 1st Council of Europe Conference of Ministers responsible for Media and New Communication Services, which was held in Reykjavik on 28 and 29 May 2009, agreed in the Resolution ‘Developments in anti-terrorism legislation in Council of Europe member states and their impact of freedom of expression and information’ “to review [their] national legislation and/or practice on a regular basis to ensure that any impact of anti-terrorism measures on the right to freedom of expression and information is consistent with Council of Europe standards, with a particular emphasis on the case law of the European Court of Human Rights”1
5. Judicial review of human rights violations and the punishment of those responsible are indispensible for ensuring an effective protection of human rights and fundamental freedoms. Parliamentary inquiries and other mechanisms overseeing the exercise of executive powers are essential for a political system based on checks and balances of powers. While these aspects emerge with some particular strength in the Recommendation the related Parliamentary Assembly Resolution 1838(2011) sets the contexts in a more elaborate manner, which could provide inspiration for the introductory elements of the Recommendation leading to its operative parts.2
6. However, the avenues of scrutiny elaborated in the Parliamentary Assembly Recommendation do not alone lead to better governance and stronger democracy. For the latter, it is necessary that people be empowered to make their own informed free choices and that they fully participate in governance. Therefore, public scrutiny is not only complementary but also essential to both judicial and parliamentary scrutiny of abuse of state secrecy either in the context of human rights violations or other matters of public interest and concern.
7. A well informed society is a pre-condition for people’s engagement and participation in governance. The media play an indispensable role in this respect. They enable people to exercise and give meaning to their right to seek and receive information, they provide spaces for public debate, they offer comment and opinion as part of political dialogue, they contribute to shape the public opinion and, most important in the context under consideration, they exercise a watchdog role in democratic societies.
8. Good governance in our societies requires more rather than less transparency, openness and accountability. People’s demand for these values and their expectation that public authorities will deliver on them is on the rise. Information and communication technologies, in particular the Internet, hold an ever growing promise to live up to such expectations and call on us to engage in a new thinking about transparency and openness. Against this background, the CDMC decided recently to propose to the Committee of Ministers a draft declaration to alert member states to the gravity of politically motivated pressure in connection with disclosure of information in online environments3.
9. The CDMC is convinced that states’ duty to protect fundamental rights and freedoms requires permanent efforts and it therefore fully supports and welcomes a reflection on the notion of state secrecy in relation to human rights violations as indicated in the Recommendation. While appreciating the scope of the recommendation and the conciseness of the text, the CDMC would nevertheless submit that Council of Europe’s future efforts should not be satisfied with confining the notion of state secrecy within boundaries that grow out of old dichotomies such as secrets worthy or not worthy of protection. In order to encourage and promote good governance, it is necessary to engage in a new thinking of the very scope of state secrecy, one which has people’s right to know and their legitimate expectations of transparency and openness as its underlying premise. To that effect, the CDMC would suggest that the proposal made in sub-paragraph 2.1 be extended to providing guidance with regard to enhancing public scrutiny of governance.
10. The CDMC would also suggest to address the need for member states to implement or, as appropriate, review their policy of classifying and declassifying government information, which should be transparent, proportionate to the legitimate aims pursued and take full account of Article 10 of the European Convention on Human Rights. In particular, member states should be invited to take further concrete action to implement the Reykjavik Resolution ‘Developments in anti-terrorism legislation in Council of Europe member states and their impact of freedom of expression and information’.
11. To conclude, the CDMC would advance that the state should keep less secrets and when secrets are kept, if necessary in a democratic society (respond to a pressing social need), they should be better guarded. Moreover, the media, discharging their legitimate and essential role of public watchdogs, should not be held responsible for the disclosure of information withheld from the public and which the latter are entitled to have access to; if someone has to be held to account in such cases, it should be those responsible for keeping the secret, not the journalists or media involved. The guidance provided in Recommendation No.R(2000)7 of the Committee of Ministers to member states on the right to journalists not to disclose their sources of information is of particular relevance in this context.

Appendix

Draft Declaration of the Committee of Ministers on the protection of freedom of expression and freedom of assembly and association with regard to privately operated Internet platforms and online service providers

1. Freedom of expression and the right to receive and impart information and its corollary, freedom of the media, are indispensable for genuine democracy and democratic processes. Through their scrutiny and in the exercise of their watchdog role, the media provide checks and balances to the exercise of authority. The right to freedom of expression and information as well as freedom of the media must be guaranteed in full respect of Article 10 of the European Convention on Human Rights (ETS No. 5, hereinafter “the Convention”). The right to freedom of assembly and association is equally essential for people’s participation in the public debate and their exercise of democratic citizenship, and it must be guaranteed in full respect of Article 11 of the Convention. All Council of Europe member states have undertaken in Article 1 of the Convention, to “secure to everyone within their jurisdiction the rights and freedoms” protected by the Convention (without any online/offline distinction).
2. People, notably civil society representatives, whistleblowers and human rights defenders, increasingly rely on social networks, blogging websites and other means of mass communication in aggregate to access and exchange information, publish content, interact, communicate and associate with each other. These platforms are becoming an integral part of the new media ecosystem. Although privately operated, they are a significant part of the public sphere through facilitating debate on issues of public interest; in some cases, they can fulfil, similar to traditional media, the role of a social “watchdog” and have demonstrated their usefulness in bringing positive real-life change.
3. In addition to opportunities, there are challenges to the effective exercise of freedom of expression and to the right to impart and receive information in the new media ecosystem. Direct or indirect political influence or pressure on new media actors may lead to interference with the exercise of freedom of expression, access to information and transparency, not only at a national level but, given their global reach, also in a broader international context. Decisions concerning content can also impinge on the right to freedom of assembly and association.
4. Distributed denial of service attacks4 against websites of independent media, human rights defenders, dissidents, whistleblowers and other new media actors are also matters of growing concern. These attacks represent an interference with freedom of expression and the right to impart and receive information and, in certain cases, with the right to freedom of association. Companies that provide web hosting services lack the incentive to continue hosting those websites if they fear that the latter will come under attack or if their content may be regarded as sensitive. Furthermore, the companies concerned are not immune to undue interference; their decisions sometimes stem from direct political pressure or from politically motivated economic compulsion, invoking justification on the basis of compliance with their terms of service.
5. These developments illustrate that free speech online is challenged in new ways and may fall victim to action taken by privately owned Internet platforms and online service providers. It is therefore necessary to affirm the role of these actors as facilitators of the exercise of the right to freedom of expression and the right to freedom of assembly and association.
6. Interference with content that is released into the public domain through these means or attempts to make entire websites inaccessible should be judged against international standards designed to secure the protection of freedom of expression and the right to impart and receive information, in particular the provisions of Article 10 of the Convention and the related case law of the European Court of Human Rights. Furthermore, impediments to interactions of specific interest communities should be measured against international standards on the right to freedom of assembly and association, in particular the provisions of Article 11 of the Convention and the related case law of the European Court of Human Rights.
7. The Committee of Ministers, therefore:
− alerts member states to the gravity of politically motivated pressure exerted on privately operated Internet platforms and online service providers, and of other attacks against websites of independent media, human rights defenders, dissidents, whistleblowers and new media actors;
− underlines the necessity to reinforce policies that uphold freedom of expression and the right to impart and receive information, as well as the right to freedom of assembly and association, having regard to the provisions of Articles 10 and 11 of the Convention and the related case law of the European Court of Human Rights;
− confirms its commitment to continue to work to address the challenges that these matters pose for the protection of freedom of expression and access to information.


1 The Delegation of the Russian Federation made a reservation in respect of this paragraph of the Resolution. It indicated that the subject matter dealt with in it does not fall entirely under the competence of the authorities of the Russian Federation responsible for media and mass communication.

2 The first paragraph of the Resolution states that “[t]he Parliamentary Assembly considers that judicial and parliamentary scrutiny of government and its agents is of vital importance for the rule of law and democracy. This also applies especially to so-called special services whose activities are usually kept secret. State security and intelligence services, the need for which cannot be put into doubt, must nonetheless not become a “state within the state”, exempted from accountability for their actions. Such lack of accountability leads to a dangerous culture of impunity, which undermines the very foundations of democratic institutions.”

3 The CDMC decided at its 14th meeting to propose to the Committee of Ministers for possible adoption a draft Declaration of the Committee of Ministers on the protection of freedom of expression and freedom of assembly and association with regard to privately operated Internet platforms and online service providers, see appendix.


4 . Note of information for the Committee of Ministers to be deleted after adoption of the text: distributed denial of service attacks consist in flooding a website with messages and requests from a number of computers in order to put it out of service.