The EU Member States and Freedom of Expression in the Digital Era: Can the EU Protect Its Fundamental Values?

Freedom of Expression: EU vs. the Member States

One of the European Union’s core values is that of Freedom of expression, as enshrined in Article 11 of the EU Charter of Fundamental Rights and defined as the ‘freedom to hold opinions and to receive and impart information and ideas without interference by a public authority and regardless of frontiers’. While the current digital communications era has enabled many people to share their views and opinions with others in a way they previously could never have done, it has also led to fake news and hate speech becoming ubiquitous through websites such as Twitter, Facebook, and Youtube.

However, despite the EU’s commitment to upholding this Freedom of Expression, several of its Member States have adopted laws that have been in breach of these values and ideals. As the Annual report 2019 by the Partner Organisations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists indicates, countries including Italy and Hungary have committed a significant number of media freedom infractions. There are different ways in which freedom of expression can be curtailed. Below, we explore three countries which have introduced laws (or keeping existing ones) that have damaged freedom of speech: Germany, Spain, and Hungary. 

Freedom of Expression Hampered by German Legislation

Starting on the 1st January 2018, the Network Enforcement Act (NetzDG) became legislation in Germany, causing controversy. According to this law, social media platforms are legally obliged to take down ‘illegal’ content or face a fine of up to €50 million. These intermediaries are requested to delete content that has been reported by users and that can clearly be identified as hate speech or fake news, all within 24 hours. For content where legality remains in doubt, platforms have 7 days to react and remove posts.

The issue with the Network Enforcement Act is that social media platforms, in seeking to avoid large fines, are deleting content that is not, in fact, illegal or hateful. Accusations of censorship have therefore surfaced, with fears that such a law will have a negative impact on freedom of expression. While the intentions behind this law are admirable (attempting to stamp out hate speech and disinformation), it has largely been as ‘rushed through’ by lawmakers and has been described Renate Künast, a German Green MP as‘ a big mess’.

The incentive for social networks to delete content that may not be illegal out of the fear of big fines has led to satirical messages and parodies being removed, in clear breach of freedom of expression. Human Rights Watch has called the law ‘flawed’, stating that it is ‘vague, overbroad, and turns private companies into overzealous censors to avoid steep fines, leaving users with no judicial oversight or right to appeal”. The European Federation of Journalists wants an outright repeal of the bill due to its chilling consequences in the public discourse.

The EU as a whole has taken a different approach to handle fake news by adopting a voluntary approach, whereby stakeholders agree to uphold a Code of Practice, ‘a set of industry self-regulatory commitments to fight disinformation’. The Network Enforcement Act runs counter to what the European Union is enacting to fight disinformation and shows the difficulty in creating a European approach to such an issue as MS can simply enact laws as they please.

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Spain Attempts to Fight Terrorism and the Price is Freedom of Expression

Spain has very strict anti-terrorism laws which are landing citizens in prison for making jokes on Twitter. In 2017, a 21-year-old student’s tweets joking about ETA were deemed to ‘glorify terrorism’ and she was handed a 1-year prison sentence. Amnesty International has spoken out, criticizing Spain for making excessive terrorism allegations against people expressing a difference of opinion on social media. Its report states that authorities have ‘pressed criminal charges against people who had expressed opinions that did not constitute an incitement to a terrorism-related offense’.

Aside from punishing the supposed ‘glorifying of terrorism’, there are also penalties for insulting the monarchy and denouncing political corruption. Rapper Jose Miguel Arenas was sentenced to 3 and a half years in prison for glorifying terrorism and slandering the crown. As the UN experts on Freedom of expression stated in 2015, there should only be criminal responsibility for the incitement of terrorism and that concepts such as ‘glorifying’, and ‘encouraging’ terrorism should not be used.

The European Union agrees and makes it clear that the glorification of terrorism has to include ‘gathering support for terrorist causes or to seriously intimidating the population’, which does not apply in the examples outlined. However, the EU has failed to challenge this unjust Spanish law which breaches its very own charter of human rights.

Hungary’s Government Increasingly Controls the Media

In Viktor Orbán’s Hungary, media freedom can be seen as being “under attack”. The infamous politician is criticized for a range of things: from the way he has handled the refugee crisis to the control he has over Hungary’s media scene. Under his party, Hungary has dropped 50 positions in Reporters Without Borders ranking since 2010. Meanwhile, Mediaworks Holding, a media company that owns 2/3 of the regional Hungarian newspapers belongs to Lörinc Mészáros, an old and wealthy friend of Orbán.

Independent online media outlets are being bought by government-affiliated companies. In 2014, when the editor-in-chief of Origo, an online media outlet, published an article about the possible use of public funds by a government member, he was fired. Three years later, the outlet was bought by Ádám Matolcsy, who is close to the government. The outlet now supports government propaganda. Orban has gone further, handing over private media to the Central European Press and Media Foundation (CEPMF) that is run by supporters and prioritising funding for pro-government media.

Prior to the 2018 election in Hungary, there was a ‘continual erosion of the online media environment and pro-government propaganda proliferating online’. While Hungarian law defends the right of freedom of expression and of the press, it limits it if it “violates the dignity of the Hungarian nation.” This vague wording can encompass everything and anything, making it very easy to create an environment where censorship escalates.

The situation in Hungary is particularly extreme but serves to show that being a part of the European Union, and signing up to its charters and treaties is simply not enough to ensure that freedom of expression and other values the EU claims to espouse are protected.

An EU approach to safeguarding Freedom of Expression?

Member states adopting legislation that impact on freedom of speech without taking cues from the EU or using its values as their compass means that having an effective European approach to protecting freedom of expression seems highly unlikely.

It appears that the digital environment we live in seems to have made it even more difficult for fundamental values such as freedom of expression to be upheld. The internet has made freedom a speech more vulnerable in a number of countries, even in an EU that sees itself as liberal and free.  Attempts to contain disinformation have led to censorship in Germany. Jokes that would once have been told in private to one’s circle of close friends are now posted on Twitter for all to see, leading to more people being arrested in Spain. The digital era has also made certain governments seek to control the media both online and in print, like in Hungary.

Each of these examples shows a divergence from the values the EU claims to hold dear. They also happen to be in very different countries, with distinct histories and traditions, showing that the problem with upholding freedom of expression spreads across the continent and could happen in any member state. So, how can the EU find a uniform approach to protect freedom of speech when member states can do pretty much as they please? That is a question that should concern us all.

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