C Explanatory memorandum by Mr Bogusław
Sonik, rapporteur for opinion
1 Introduction
1.1 Scope of this
opinion
1. The Covid-19 crisis affects
all the fields of the committee’s terms of reference and therefore
has an impact on a number of fundamental rights. Several members
have underlined the undesirable consequences of this crisis for
cultural institutions and hence its impact on the right to access
culture. We are also aware of the exceptional difficulties facing
our schools and academic institutions. Although the situation may
be gradually returning to normal, the crisis has adversely affected
the right to education – in particular for vulnerable groups – and
lessons must be learned from this, especially given that the risk
of a “second wave” of the pandemic still cannot be ruled out. The
situation of young people, which was already an issue of concern, has
suddenly worsened and this is not to forget the burden left to be
shouldered by future generations in the form of the considerable
debt that States are taking on in order to meet their most pressing
needs and prevent our societies from collapsing.
2. It is clearly impossible to address all these issues in the
current opinion. I am therefore delighted that the initiative was
taken to set in motion a new report on the impact of the Covid-19
pandemic on education and culture.
3. The scope of my opinion will therefore deliberately be limited
to a specific issue: violations of the freedom of the media as safeguarded
by Article 10 of the European Convention on Human Rights.
Note
1.2 Overview of threats
to media freedom in the context of the current crisis
4. The Covid-19 crisis has seriously
affected the press and journalists. Even before, the economic model of
conventional media was already badly hit by the loss of most advertisers,
who had deserted print media and moved online. Advertising revenues
are now dropping even more quickly during the public health crisis because
newspaper sales have slumped and companies are preparing for an
economic downturn, leaving journalism endangered on a global scale.
Note As for
journalists, their situation has become particularly precarious since
the start of the pandemic: some are starting to face redundancies
or are being forced to accept a wage cut and/or a shift to less
secure and poorly paid freelance work.
5. Furthermore, the Covid-19 crisis has clearly had a direct
impact on the working conditions of journalists in all Council of
Europe member States. Like other key workers, their occupation leaves
them exposed to increased health risks and as the crisis is undermining
the financial stability of the media sector, particularly that of
old media, job safety and rates of pay are also put at risk. In
addition, the media have been operating during the pandemic in difficult
conditions that considerably impede access to reliable information
and increase the risk of spreading information that has not been
verified to normal standards.
6. As quality information is of vital importance for democratic
processes and for effectively fighting the virus and its consequences,
public authorities should have made a commitment to preserving free
and independent media, supported the media ecosystem and facilitated
journalists’ work. Yet since the start of the current crisis, media
freedom has faced new threats in several member States.
7. Some governments have used the pandemic as a pretext for adopting
emergency legislation restricting fundamental freedoms – including
the freedom of information – leaving societies exposed to a two-fold
risk: such restrictions go beyond what is actually required to deal
with the crisis and they could remain in force longer than strictly
necessary. Such an approach could have severe consequences for press
freedom.
8. Furthermore, in several countries, freedom of information
is under mounting pressure and the threats and attacks on the media
and journalists have become even more alarming. Several governments
seem to want to exploit the crisis to strengthen their hold over
communication with the general public: they filter the information
to which citizens have access and try to shape media coverage to
avoid criticism of their actions on the ground that it undermines
public order. Journalists who continue to criticise – by asking
difficult questions and demanding the authorities justify their
actions – run the risk of physical aggression, online harassment,
police investigations, fines and legal harassment; foreign correspondents
are deported.
2 State of emergency,
derogations from Article 10 of the European Convention on Human
Rights and changes to the legal framework which adversely impact
media freedomNote
9. Under Article 15 of the Convention,
in exceptional circumstances any member State may take measures derogating
from its obligations under the Convention, provided that such measures
are not inconsistent with its other obligations under international
law. Several Council of Europe member States have declared a state of
emergency during the Covid-19 public health crisis. On 23 April
2020, 10 countries informed the Council of Europe of human rights
derogations: Albania, Armenia, Estonia, Georgia, Latvia, North Macedonia,
the Republic of Moldova, Romania, San Marino and Serbia.
Note
10. In general, the derogations concern certain obligations under
Articles 5, 8 and 11 of the Convention, and Articles 1 and 2 of
Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention.
11. No derogations to Article 10 of the Convention were declared.
However, in the many documents accompanying the declarations of
derogation, two member States – Armenia and the Republic of Moldova
– specifically referred to media operations, although it must be
noted that there is no legal obligation to specify which rights
or freedoms may be affected.
12. In Armenia, as part
of the temporary restrictions on rights and freedoms introduced
in mid-March, it was declared that any publication of information
about the pandemic (public dissemination, transfer of publications, information
material or reports on the current or new cases of infection from
the virus in Armenia or abroad, on the state of health of persons,
sources of infection, etc.) should be carried out by legal and natural
persons, including the media, exclusively by making reference to
the information provided by the Commandant’s Office (referred to
as “official information”). These reports were not to contradict
official information and should reproduce it as far as possible.
On 13 April 2020, the government announced that the restrictions
previously imposed on media coverage would not be extended, but
that the authorities would continue to monitor the situation regarding
false information and reserved the right to reintroduce the previous
measures if necessary.
13. In the Republic of Moldova,
during the state of emergency, the Commission for exceptional xituations was
responsible for coordinating media activities as regards: a) informing
the population about the causes and extent of the exceptional situation,
the risk-prevention measures undertaken, how the consequences of
the situation were being dealt with and the protection of the population;
b) notifying the population about the rules of conduct during the
exceptional situation; c) introducing special rules for the use
of telecommunications.
14. In other States, laws, decrees and decisions restricting media
activity were adopted or proposed for adoption. Under Article 10
of the Convention, such restrictions must be prescribed by law,
necessary and proportionate to the legitimate purpose, i.e. the
response to an exceptional threat to public health and security.
15. In Hungary, on 30 March
2020, a draft law was adopted allowing Prime Minister Viktor Orbán
to rule by decree by indefinitely extending the state of emergency
because of the Covid-19 pandemic. This law also changed the Criminal
Code to clamp down on spreading “false information” with jail terms
of up to five years. The risk is that the Hungarian Government will
use these new powers to tighten its control and its hold over the country’s
news system and to silence all critics by threatening independent
journalists with criminal prosecution and jail terms. Rights groups
have warned that the new law gives the prime minister more powers
to introduce draconian restrictions without a “sunset clause” that
would allow the measures to be lifted at the end of the public health
crisis. The law could also have devastating consequences for the
remnants of Hungary’s independent media, which is already weakened.
On 17 June 2020, the government announced the end of the state of
emergency that allowed the prime minister to rule by decree.
16. In Turkey, on 24 March
2020, the governing coalition submitted draft amendments to the
Law on Criminal Enforcement. These propose to release around a third
of Turkey’s 300 000 prison inmates, by accelerating plans for early
or conditional release in order to ease capacity in the overcrowded
prisons and reduce the risk to inmates’ health caused by the current
Covid-19 crisis and the increased risk of infection in incarceration.
While efforts to reduce overcrowding in Turkish prisons should be
welcomed, the draft law excludes prisoners being prosecuted for
terror-related charges. Yet the majority of the 95 journalists in
jail are there on terrorism charges as a result of the political
targeting of journalists for critical reporting. It should be noted
that during the current public health crisis, journalists have also
been targeted for publishing information that the authorities regard
as dangerous.
17. Furthermore, Human Rights Watch has warned that since the
start of the pandemic, the Turkish Government has been using the
crisis in a bid to expand control and censorship over social media
platforms.
Note Under a draft law on new economic
measures to deal with Covid-19, social media platforms must put
forward legal representatives to deal with Turkish courts. The representatives
would have 72 hours to manage requests to remove content and block
access to accounts and would have to provide a quarterly report
on content removal. Platforms would also be required to store user
data in Turkey, implying that the authorities could demand access.
Failure to comply with the law could lead to fines of up to 5 million
Turkish lira ($746 000). Since the start of the pandemic, people
have already been briefly detained then subjected to criminal investigation
and prosecution for social media posts that prosecutors deem a threat
to public health, sowing fear and panic among the population.
18. In the Russian Federation,
President Vladimir Putin enacted legislation on 1 April 2020 imposing
harsh new penalties on media organisations and individuals for spreading
“false information” about the Covid-19 crisis. The new laws amend
the Administrative Code, introducing new penalties for legal entities,
and the Criminal Code, introducing a new offence and harsher penalties
on individuals. The application of the new laws will not be time-limited
to the duration of the pandemic. They are broadly worded to cover
“false information” about any events that pose a potential threat
to people’s lives or safety, and the government’s responses to such
events. Media organisations will face fines of up to 5 million roubles
(€62 000), that may rise to 10 million roubles (€124 000) for repeated
offences. Individuals will face criminal prosecution that may lead
to severe financial penalties (for example fines equivalent to the
person’s total income over the last 18 months) and prison sentences
of up to 5 years.
19. Besides hefty fines, Russia media organisations that call
into question official figures or the State response to the virus
risk having their licence revoked. Russia’s official media regulator,
Roskomnadzor, warned against publishing false information that it
said could lead to the risk of severe disruption to public order and
health. Several media organisations were instructed to delete information
suggesting that the number of cases of the virus could be higher
than official figures.
20. In Azerbaijan, the
parliament has changed the Law on Information so that website owners
are required to prevent the publication of “[false] information
which can harm” on a vast list of subjects ranging from the healthcare
system to transport networks; this goes against freedom of expression.
Sir Roger Gale (United Kingdom, EC/DA), co-rapporteur on the honouring
of obligations and commitments by Azerbaijan, condemned the government’s
measures as a “shameful exploitation” of the pandemic. Members of
the Azerbaijani opposition have been arrested for criticising the
government’s handling of the crisis.
21. In Armenia, since the
government declared a state of emergency on 16 March 2020, more
than 20 media organisations have had to change or delete information
that the authorities considered dangerous on grounds of scaremongering.
Strict rules prohibit the publication of information about the Covid-19
pandemic in Armenia and abroad, including infection and death rates
which are not fully consistent with official press releases and
information published by the Armenian Unified Information Centre.
In mid-April, the government announced that the restrictions previously
imposed on media coverage had not been extended (see above).
22. In Bosnia and Herzegovina,
decrees and legislative proposals aimed at blocking the circulation
of information that is liable to cause panic run the risk of limiting
the work of journalists and freedom of expression on social media
platforms.
23. In Romania, a decree
allows the authorities to demand the removal of content containing
“false information” regarding the evolution of Covid-19 and prevention
measures, and block websites featuring this content, without any
opportunity to appeal the decision. Another decree provides for
a doubling of the time limit the public authorities have to respond
to a request for information.
3 Attacks and pressure
on the media and journalists in EuropeNote
3.1 Police action
24. Since the pandemic began, police
in several member States have interfered with the work of journalists and
resorted to methods and actions that endanger media freedom. For
the purposes of intimidation, journalists are being arrested and
detained, only to be subsequently released. They are ill-treated
at the police station, their work equipment (computers, cameras
and mobile telephones) is seized and pictures and recordings are deleted.
Persons in civilian clothing sometimes act on behalf of the police.
There have been cases where journalists have been accused of “spreading
fear and panic among the population”. Arbitrary arrests have been made
after interviews about the economic repercussions of lockdown measures
and journalists have been detained for “violating quarantine rules”,
even when they had official documents authorising them to conduct their
work. According to the Council of Europe Platform to Promote the
Protection of Journalism and the Safety of Journalists (hereafter:
“the Platform”), at least six cases of police action of this kind
have been reported in Turkey, five in Azerbaijan and one in Serbia.
3.2 Threats and pressure
from public authorities and politicians
25. The intimidation of journalists
by authorities and political representatives is part of a worrying
trend that is on the rise. Reports of three threats of this kind
have been recorded in the Russian Federation, one in Turkey and
another in Slovenia.
26. In the Russian Federation, the President of the Republic of
Chechnya made death threats against a journalist who was investigating
human rights violations in Chechnya that were perpetrated under
the pretext of fighting the Covid-19 pandemic. In fear of her life,
the journalist lodged a complaint with the General Prosecutor's
Office but received no response: instead of offering her protection,
it ordered her to delete the article from the newspaper’s website.
27. A high-ranking official at the Russian Ministry of Defence
threatened an Italian journalist who had been investigating Russian
support of the coronavirus response in a region of Italy. The journalist
had cast doubts over whether the Russian military presence was solely
for medical assistance, arguing that Russia’s assistance was really
an intelligence and propaganda operation. In response, the high-ranking
military official accused the journalist of inciting “Russophobia”
and openly threatened him.
28. Also in the Russian Federation, a regional governor directly
threatened journalists by declaring that spreading “fake news” during
the coronavirus pandemic was akin to extremism.
29. Sometimes, high-ranking officials refrain from making overt
threats but disparage and stir up hatred against the media and journalists
in order to sow distrust in news outlets.
30. For example, Turkey’s President declared after a Cabinet meeting
that the country had to be rescued not only from the coronavirus
but from all media and political viruses, too. He said that instead
of contributing to the fight against the pandemic, journalists were
publishing false information and untruths and were thus more dangerous
than the virus itself.
31. In Slovenia, the prime minister recently made vitriolic attacks
on critical journalists, accusing public television of spreading
lies about the pandemic and claiming that one of the journalists
was an escaped psychiatric patient suffering from “COVID-Marx/Lenin”.
3.3 Fake news: a
pretext for muzzling media
32. False information obviously
has the potential to do considerable harm, particularly in times
of crisis like the current pandemic: it can lead the public to behave
irrationally, be overwhelmed by panic or disobey the lockdown rules
or public health measures. Fake news must be fought as soon as it
emerges in order to contain it. Nevertheless, some member States
use the fight against false information as a pretext to curb media freedoms
and increase their control over the media environment.
33. For example, at a government meeting, the Russian President
claimed that false information about the coronavirus was being organised
from abroad and disseminated in the country to sow panic. These
remarks hold great significance in light of the country’s new legislation
imposing harsh new penalties on media organisations and individuals
for spreading “false information” about the Covid-19 crisis. At
the same time, according to a report by the European External Action
Service’s East StratCom Task Force, official Russian outlets backed
by the Kremlin have been targeting the general public in the European
Union and its neighbouring regions with false information and conspiracy
theories about the Covid-19 pandemic.
34. In Turkey, the Radio and Television Supreme Council sanctioned
a television channel for critical remarks made during its coverage
of State measures dealing with the Covid-19 crisis that in particular
referred to moves to block fundraising campaigns organised by opposition
mayors. It also objected that a programme had allegedly spread “false
information” when the channel reported on the difficulties people
had faced when buying bread during lockdown.
35. As an interim measure during the state of emergency, on 20
March 2020, the Moldovan Intelligence and Security Service blocked
52 websites that were “disseminating false information about the
coronavirus with the aim of generating panic”. It also published
a list of websites to which access must be limited.
36. Journalists are not the only ones to be deterred by laws on
“false information”. For fear of becoming liable under the new laws,
doctors and other healthcare professionals are hesitant to disclose
facts and figures about the Covid-19 public health crisis. This
is particularly the case in the Russian Federation and Hungary where long
prison sentences may be handed down for such behaviour. Self-censorship
follows by necessity.
37. In a letter to the Minister of Health, the People’s Advocate
of the Republic of Moldova asked for an immediate end to all forms
of pressure on healthcare workers and pointed out that persons making
public disclosures were protected by the Law on Whistle-blowers
and should benefit from all its legal safeguards.
3.4 Restrictions
on access to information
38. In exceptional situations like
the current pandemic, it is vital to keep the public correctly informed
about the virus. However, limits or delays in providing access to
information have been observed in several member States.
39. For example, in the Czech Republic, Italy and Serbia, journalists
were prevented from attending press conferences, obtaining information
from public health authorities or reporting on law-enforcement operations. In
the Russian Federation, foreign journalists were refused entry to
the parliament, and courts have started to prevent the media from
attending public hearings. Lastly, journalists and press photographers
were denied entry to the Gare du Nord in Paris and to other French
railway stations where they had been planning to report on the conditions
for taking public transport after lockdown had been lifted.
40. In Serbia, the government extended the time limit for responding
to public information requests to 30 days. In the Republic of Moldova,
the authorities tripled the authorities’ permitted response time
for public information requests, which before the state of emergency
was 15 days. Representatives from 25 media outlets complained about
the lack of transparency and access to information of public interest
since the introduction of the state of the emergency and asked the
Minister of Health to organise online press conferences during which
journalists would be allowed to ask live questions.
41. In Romania, a decree on the state of emergency contained a
measure doubling the public authorities’ authorised response time
for information access requests, the time limit prior to the state
of emergency having been 10 days (and 30 days in certain special
cases). Several local agencies of the Romanian Ministry of Health cited
the fight against Covid-19 as a reason for refusing to provide journalists
with information or for directing them to the Communications Office
created by the Ministry of the Interior to centralise crisis information.
3.5 Non-state attacks
and pressure
42. Journalists are also subject
to hostile acts by non-state perpetrators. For example, some investigative journalists
have been targeted by smear and hate campaigns, even receiving death
threats from extremist individuals or groups which accuse media
professionals of unreasonably questioning government measures responding
to the public health emergency. Other journalists have been physically
assaulted when they were on the point of uncovering unwelcome truths
about the operations of various companies involved in the supply of
products that are indispensable in the current crisis and sometimes
lacking, like masks, rubber gloves or hand sanitiser products. Slovenia
and Ukraine have both had a case that is representative of this
concerning trend.
Note
43. Furthermore, some businesses are also using the fight against
fake news as a pretext for intimidating media outlets, by initiating
legal proceedings against publishers and seeking substantial damages,
as was the case with the Polish clothing company LLP.
44. Since the beginning of the Covid-19 crisis, there have been
reports from several countries of violent attacks during demonstrations
on media professionals which were conducted by law-enforcement officers
and sometimes by demonstrators themselves. There has been a recent
spate of such attacks during demonstrations in Germany. There have
also been similar cases in Italy, Poland and Slovenia. This worrying trend
helps impair the media’s ability to provide coverage of demonstrations
and keep the public up to date with correct information.
4 Conclusions
45. The exceptional circumstances
arising from the public health crisis must not be used as a pretext
by member States to restrict freedom of expression and media freedom.
On the contrary, in the light of the need to keep the public correctly,
reliably and quickly informed of all developments concerning the
pandemic and governmental responses to the crisis, it is vital to
ensure freedom of expression in general and freedom of the media
in particular. In this respect, it is indeed worrying to note the
proliferation of restrictive laws and threats against journalists
and independent media outlets.
46. Verbal attacks are becoming more widespread and it is unacceptable
that government members or other high-ranking representatives of
institutions and ruling political parties express contempt or hatred
for the media and journalists in order to sow distrust in journalists
and independent news outlets.
47. It is disgraceful that the police, who should protect journalists
against any form of assault or harassment, is itself responsible
for attacks on them. Training plays a vital role in combating such
abuse: police officers must understand that acts to intimidate journalists
like arrests and detention, ill-treatment and the seizure of work equipment,
are wholly unacceptable in democratic society.
48. Media outlets ought to have free access to information about
the pandemic. Spokespersons or other official bodies should ensure
continuous communication with the media and press agencies and,
if necessary, facilitate media access to government members or experts.
Public authorities should respond without delay to requests for
information and cease the practice of interviews with advance screening
of questions and no further opportunity for additional questions.
49. Any “vetting” of information about the pandemic by public
authorities should be ruled out on principle. Governments should
adopt a transparent approach and facilitate public access that is
as broad as possible to information regarding the pandemic because
it affects the health and lives of their people. Restrictions on access
to information should remain the exception and respect the limits
set out under Article 10 of the Convention.
50. The public has more limited access to print media during a
period of lockdown, which means that television, radio and particularly
the Internet become very important sources of information. Access
to the Internet is vital in times of crisis. The fact that false
information circulates online should not be used as a pretext for
blocking websites. Disinformation is obviously particularly dangerous
during a crisis and must be dealt with firmly and effectively, including
through the provision of high-quality information. Nevertheless,
such efforts must be conducted in full respect of the freedom of
expression and without silencing independent media.
