Free speech under quarantine: when emergencies lead to censorship, EU law might help

– By the European Center for Not-for-Profit Law (ECNL)

Following the proclamation of a state of emergency, a government adopts a law which provides that any emergency related information made available to the public shall only refer to official information provided by the government, under the threat of heavy fines. The law also punishes as a criminal offence, with terms of imprisonment, anyone who publicises information related to the emergency that interferes with the “successful protection” of the public. Any information that “may alarm or agitate” the public is included in this category. As a consequence, journalists, broadcasters and online content providers start being censored with requests of removal of content or rectifications and sanctions. Several arrests are also carried out under the new law, subject to the discretionary assessment of the police, against individuals expressing critical opinions on social media about measures taken by the government in response to the emergency, investigative journalists revealing the flaws of the government’s emergency strategy, public officials disclosing breaches of laws and procedures and civil society activists pointing to the inadequacy or illegality of government’s action based on their work on the ground. While many cases are later dismissed, the chilling effect on the democratic debate is severe.

Turning a pandemic into a pretext to quash dissent
Laws like this are actually in place right now in a number of countries, including EU Member States, following the outbreak of the COVID-19 pandemic. In fact, authoritarian regimes all over the world have been using the public health emergency caused by the pandemic to step up their plans to clamp down on critical voices. In Europe, for example, Bosnia and Herzegovina’s government has forbidden causing “panic and disorder” by publishing or transmitting false news during the emergency, with hefty fines imposed on  individuals or organisations found in violation of the ban. In the EU, Hungary is now also punishing anyone who “distorts” or publishes “false” information on the pandemic with up to five years in jail.

When a community is in danger, extraordinary measures may need to be adopted to secure people’s safety, including some that may result in certain limitations to their fundamental rights and freedoms. These limitations are legitimate as long as they are strictly necessary and proportionate, meaning they do not go beyond what is really needed to address the actual danger in a situation of emergency. The problem is that some government leaders try and use the existence of a danger to justify the adoption of measures which are nothing but an arbitrary and disproportionate attack to fundamental rights and freedoms and cannot be justified as a necessary and proportionate response to the emergency.

People who feel their safety is threatened need to be reassured and feel they can have confidence in their leaders’ actions.  This offers governments willing to quash dissent an easy shortcut to use an alarming war-like rhetoric and point to those who criticise their actions as enemies of the state. In such situations, measures taken by governments to establish or tighten control over critics can be disguised as a way to prevent the public from being exposed to panic and alarmism and to safeguard public security and public order. As a result, activists and civil society organizations, in particular those exercising a watchdog function, can easily become targets of arbitrary and severe restrictions on free speech.

EU law offers tools to challenge censorship
Measures like the ones described above are clearly in breach of fundamental rights and freedoms, in particular the right to freedom of expression and the right to information, which contribute to an enabling environment for civic space. These rights are reaffirmed at EU level, in Article 11 of the EU Charter of Fundamental Rights (CFR) – the EU human rights catalogue.

In EU Member States, it is possible to invoke the violation of a right or freedom enshrined in the CFR whenever a national measure or practice clashes with the EU country’s obligations under EU law – be it the EU Treaties or binding acts adopted by the EU. Restrictions on provision of information, or even the criminalisation of such provision can arguably be challenged, for example, for their negative impact on the EU internal market freedoms, such as the freedom to provide services (Article 56 of the Treaty on the Functioning of the EU). Indeed, foreign outlets, journalists, offline/online media actors and service providers could be reasonably dissuaded from performing their activities in an EU member state where they risk being sanctioned or even jailed for covering certain issues. Such restrictions would likely affect, in particular, independent media outside the government’s influence, forcing them out of the country and thus stifling media pluralism and information diversity.

EU rules regulating the free circulation within the EU of audiovisual media services – i.e., the Audiovisual Media Services Directive – may also come into play in this connection. These rules provide that, as a general principle, EU governments may not restrict what broadcasts people can receive or what audiovisual content or programmes foreign broadcasters can retransmit in their country. This applies to TV broadcasting and on-demand audiovisual content, including content hosted on the internet or shared via social media platforms. Therefore, measures such as the ones described above would likely fail any necessity and proportionality test imposed by this Directive, considering the limited margin of discretion that governments are granted to justify restrictions to the general principle of free reception and retransmission of content.

Another EU principle that could be relied upon may be the duty of sincere cooperation imposed to all EU member states (Article 4, (3) of the Treaty of the EU). Pursuant to this principle, EU member states must refrain from adopting any measure liable to jeopardize the achievements of the objectives pursued by the EU or deprive EU law of its effectiveness.

Threatening with sanctions or even imprisonment anyone who reports or discloses information other than that communicated by the government, or information deemed liable, at the authorities’ discretion, to alarm or agitate the public, curtails an open and free public debate, thus going against the EU founding values of democracy and respect for human rights enshrined in Article 2 of the Treaty on the EU. Furthermore, it also jeopardizes the EU’s objective of enabling and encouraging the reporting of wrongdoings, with the aim to help preventing damage or detecting threats or harm to public interest that may otherwise remain hidden. Such objective has been realised through a recent flagship EU initiative, the Directive on Whistleblowers Protection, which provides a legal framework for the protection of persons reporting on breaches of EU law by public or private entities they are in contact with in their work-related activities. While member states still have more than one year to transpose this directive into national law, its adoption already binds EU governments to refrain from any measures compromising the directive’s effectiveness ahead of the transposition deadline.

EU rules have their guardians  
Different avenues exist to try and challenge national laws and practices violating EU law.

National courts are the first in line, should you become the target of a restriction such as the one we described. Before the national court, you will be able to invoke the violation by national authorities of EU law and the CFR, which the court should examine, possibly requesting the assistance of the EU Court of Justice.

You may also, in such case, raise the matter with independent national authorities, like the national human rights institution or specialised entities like the media regulatory body, which may take up the issue by approaching national authorities or through litigation, if their mandate allows.

National laws and measures which result in systemic violations of governments’ obligations under EU law, including the CFR, can also be brought to the attention of the EU institutions through complaints addressed to the European Commission or petitions addressed to the European Parliament. The body responsible for monitoring the respect by EU governments of their obligations under EU law is the European Commission. In this role, the Commission is referred to as the ‘guardian of the treaties’. The Commission will take steps to inquire the matter and can, if it establishes a violation of EU law, start formal infringement proceedings against the country in question.