Organization for Security and Cooperation in Europe (OSCE)

		Website: www.osce.org
		Keywords: Freedom of expression, media, Internet governance, human rights

Recent Developments: Appointment of the new OSCE Representative on Freedom of the Media: Limits of Expression on the Internet?

On March 11, 2010, Ms. Dunja Mijatovic of Bosnia and Herzegovina was appointed as the latest OSCE Representative on Freedom of the Media. The Representative on Freedom of the Media plays a critical role by, inter alia, providing a public platform from which to call attention to situations within the OSCE membership restricting or obstructing the operation of free media in all its forms. Freedom of expression is a foundational human right and a core element of dynamic democratic societies, and a ‘free, independent and pluralistic media are essential to a free and open society and accountable systems of government’.1 To this end, the Representative must implement a dual approach by: providing an early warning on violations of freedom of expression; and advocating and promoting full compliance by OSCE members with OSCE principles regarding freedom of expression and free media.2

The Representative on Freedom of the Media submitted her first Regular Report to the Permanent Council on July 29, 2010.3 Containing the usual rhetoric addressing the value of freedom of expression, while encouraging media transparency and member state cooperation, the report highlights new concerns over ‘the free flow of information and media pluralism on the Internet in the OSCE region’.4 Media independence and safety of journalists takes on a new format with the exponential growth of citizen-journalists who leverage electronic media technologies such as blogs, forums, and video streaming websites. Balancing openness with regulation requires governments to protect marginalized groups from harmful conduct while still allowing the normal spectrum of democratic discourse to occur. There is a real danger of regular citizens coming under scrutiny and harassment masked as ‘prevention’ simply because the individuals frequent a forum critical of their government.

The July 29th Regular Report recognizes that issues such as privacy and data protection must be legitimately balanced against free expression and the open flow of information, however, the Representative challenges OSCE members to distinguish between valid limitations for security purposes and systematic restrictions of those individuals who simply use the Internet to satirize or criticize the government in a manner well within their right of free expression.5 In anticipation of the growing importance of a legal approach to the Internet relative to freedom of information and expression, the Representative’s Office is working on developing a database containing member states’ national Internet legislation. This comprehensive matrix should help delineate overarching themes and standards while highlighting domestic lacunas.

One focus of the upcoming Review Conference (on the Human Dimension) to take place in the Kazakhstan capitol of Astana, slated for November 26-28, 2010, will address several issues of Freedom of the Media relating to electronic technologies, including the question of state response to hate crimes perpetrated via these technologies.6 Use of the Internet by hate groups and political parties to encourage and incite violent acts against minority and migrant groups has drawn OSCE members’ attention but disagreement over the level of state action in reply to such rhetoric has prevented any sort of normative consensus response. One consideration up for discussion is the use of such electronic technologies to stimulate public discourse; but effective monitoring mechanisms must be in place to allow inclusive public debates while preventing extremist groups from dominating the conversation.

In a recent speech on Internet Governance, the Representative on Freedom of the Media focused on the need for a legal framework that strikes a balance between the governance of hate speech (itself still undefined) and the free flow of expression and information on the Internet.7 There is no clear proportionality test and the Representative cautioned against suppressive actions that merely serve to push hateful and harmful content underground.
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The new OSCE Representative on Freedom of the Media’s calls for renewed dialogue regarding Internet governance and the balancing of the fundamental human right of freedom of expression against the legal limits possibly necessitated by violence-inducing hate speech is encouraging and timely. Current sovereign-debt crisis concerns within the Eurozone combined with a sluggish recovery from the global recession have prompted many to vent their frustrations at minority ethnic and religious groups like the Roma or Muslims. As the Representative touched on in her September 15 speech (see note 7, supra), the legal issues present in this debate extend beyond the content of the hate speech. Rather, questions of public (e.g. law enforcement) versus private (e.g. ISPs) regulation, responsibility, and liability arise. The upcoming Human Dimension Sessions of the 2010 Review Conference will attempt to tackle some of these difficult legal and moral questions, yet the focus and direction of any future regulation is still very much undecided. Commentators and practitioners alike should be keen to watch how these issues develop, especially how OSCE member states attempt to strike a normative balance between expression and regulation given the wide range of domestic political and demographic conditions.

D.J. Dore
School of Law
University of North Carolina

October 2010