Talaði í dag af hálfu Feneyjanefndar um tjáningarfrelsi og hatursorðræðu á alþjóðlegri ráðstefnu um vernd mannréttinda í tilefni af því að 15 ár eru frá því að embætti umboðsmanns var stofnað í Armeníu – í þjóðþinginu í höfuðborg landsins, Yerevan.
Spoke on behalf of the Venice Commission on freedom of expression and hate speech (“The dilemma of drawing a line between hate speech and robust political debate”) – High Level International Conference – 15th Anniversary of the Human Rights Defender of Armenia – taking place in the National Assembly.
Freedom of Expression and Prohibition of Hate Speech
“The dilemma of drawing the line between hate speech and robust political debate”
The 15th Anniversary of the Human Rights Defenders
Yerevan 26 November 2019
Herdís Kjerulf Thorgeirsdóttir
First Vice President Venice Commission
Your excellencies, dear participants, ladies and gentlemen,
It is an honour for me to be here in Yerevan to celebrate the 15th anniversary of the human rights defenders – especially as the Venice Commission in March this year adopted the “Principles on the Protection and Promotion of the Ombudsman Institution,” which although not legally binding help set legal standards across the continent and beyond. The Venice Principles have already been endorsed by the Committee of Ministers. All that remains now is for them to be fully embraced and properly implemented by national authorities as the Ombudsman plays an important role in strengthening democracy, the rule of law, good administration and the protection and promotion of human rights.
For 70 years the Council of Europe, a pan-European organisation has been defending democracy, human rights and the rule of law in its 47 Member States and beyond.
The Venice Commission, the advisory body on constitutional matters to the Council of Europe, enjoys the specific mandate to defend democracy through the rule of law. Next year we will celebrate the 30th birthday of this unique mechanism with a global outreach – as the Venice Commission has 61 Member States: the 47 Council of Europe Member States, plus 14 other countries.
The Venice Commission has adopted several opinions concerning legislation on freedom of expression in various Member States. In 2016 the Commission commented on the proposed changes to the constitution of Azerbaijan, which concerned inter alia freedom of expression and hate speech; where the Venice Commission warned against an open-ended definition of the concept which might justify far-reaching restrictions on freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights stating that not every statement which may arguably “provoke hostility or animosity” would amount to hate speech.
A robust, open political debate enjoys the highest protection in ECHR jurisprudence where “it is[…] incumbent on the press to impart information and ideas on political issues, including divisive ones.” Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”.
Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society“.
When dealing with cases concerning incitement to hatred and freedom of expression, the European Court of Human Rights uses two approaches which are provided for by the European Convention on Human Rights:
– the approach of exclusion from the protection of the Convention, provided for by Article 17 (prohibition of abuse of rights), where the comments in question amount to hate speech and negate the fundamental values of the Convention; and
– the approach of setting restrictions on protection, provided for by Article 10, paragraph 2, of the Convention (this approach is adopted where the speech in question, although it is hate speech, is not apt to destroy the fundamental values of the Convention).
Internet news portals which, for commercial and professional purposes, provide a platform for user-generated comments assume the “duties and responsibilities” associated with freedom of expression in accordance with Article 10 § 2 of the Convention where users disseminate hate speech or comments amounting to direct incitement to violence.
The ECtHR uses the term “hate speech” throughout its case-law. Yet there no precise meaning of this concept and no specific test/criteria for it, which is problematic. Instead, a case-by-case approach is applied
An example of hate speech not warranting the protection of Art. 10 of the ECHR was the case of Pavel Ivanov v. Russia – the owner and editor of a newspaper who was convicted of public incitement to ethnic, racial and religious hatred through the use of mass-media. He published a series of articles portraying Jews as the source of evil in Russia and calling for their exclusion from social life. He accused an entire ethnic group of plotting a conspiracy against the Russian people and ascribed Fascist ideology to the Jewish leadership. Both in his publications, and in his oral submissions at the trial, he consistently denied the Jews the right to national dignity, claiming that they did not form a nation. The applicant complained, in particular, that his conviction by domestic courts for incitement to racial hatred had not been justified.
The European Court of Human Rights declared his application inadmissible (incompatible ratione materiae). The Court found such a general, vehement attack on one ethnic group directed against the Convention’s underlying values, notably tolerance, social peace and non-discrimination. Consequently, by reason of Article 17 (prohibition of abuse of rights) of the Convention, the applicant could not benefit from the protection afforded by Article 10 (freedom of expression) of the Convention.
Tensions and contradictions emerge whenever there is an attempt to draw a line between on the one hand speech that is a genuine contribution to the political debate, although it may be offensive and shocking, the restriction will still be analysed on the bases of Article 10 (three part test) and on the other hand speech that threatens democracy’s foundations – real hate speech, which amounts to an abuse of rights – and falls under Article 17 of the European Convention on Human Rights – the so-called “guillotine provision” as it is not dealt with as a restriction of expression”. The Court has refused to consider cases under the scrutiny of Article 10 and applied the “guillotine provision” involving criminal conviction of anti-Muslim speech, holocaust denial, and incitement to racial hatred to name examples.
The Court has however found media exposure of racism not to be hate speech and dealt with the matter under Article 10 of the European Convention of Human Rights; or cases of homophobia – “serious and prejudicial statements” while even though not calling for direct violence – the domestic courts conviction was not considered going against Article 10 of the ECHR but regarded as necessary in a democratic society for the rights of others.
The ECtHR has found internet news portals liable for online “hate speech” . In MTE and Index v. Hungary (2016) the applicants, self-regulatory body of Internet content providers and Internet news portal, complained about obligation imposed upon them by moderate contents of comments made by readers on their websites, including offensive and vulgar ones following opinion criticizing misleading practices of two real estate sides. The ECTHR held in this case that while Internet news portals where not publisher they had to assume certain responsibilities under Art. 10.
In the case of Delphi v. Estonia (2015), the Court upheld liability of commercially-run Internet portal for offensive comments of readers because the case involved pivotal elements of “hate speech” and incitement to violence (i.e. unlawful speech).
It is a sign of our times that material posted on social media spreads fast and can have disastrous consequences – lies or fake news have triggered violence (random shooting in public places / Pizzagate) as recent there are recent examples of.
There is currently an on-going debate whether the global social media should resort to fact finding of material published on their sites to prevent dangerous or scurrilous views from being distributed.
Recent discussion has focused on paid political advertisements on social media, many containing blatant lies. Twitter decided to ban these ads to stop the spread of misinformation and Google has imposed strict limits on ad targeting.
Facebook, by contrast, recently said it would not fact-check or remove ads placed by politicians. Should Mark Zuckerberg the owner of Facebook censor speech because he doesn´t want his platform to be a vehicle of evil effects? Zuckerberg admits that there are two core principles at play here: Giving people a voice, then there is keeping the community safe. At times he promises that artificial intelligence technology will come up with algorithms that will allow the flagging of harmful speech without any input from fallible and prejudiced human judgment.
Zuckerberg’s position is that in a democracy it is not right for private companies to censor politicians or the news – people should be able to see for themselves what politicians are saying. – These views are based on the well-known “marketplace of ideas” principle that the remedy for harmful speech is more speech, not enforced silence.
The logic behind this view is that freedom of all speech — facts and lies and everything in between — enables a transparent public discourse, and that public discourse, over time, leads to “the truth” as bad ideas are discarded and good ideas win out. Many question the effectiveness of this model where it is left to the receivers to assess the veracity of information while private owners should stick to their hands-off policy in not censoring such material.
So, where is the line to be drawn? Should Facebook argue, as they have in the past, that theirs is a tech, not a media company and is therefore not responsible for the content that utilizes them as a conveyor. Or should they embrace a media identity and accept the responsibility and check whether the facts in political advertisements that are published on Facebook are true or false? – Zuckerberg’s position is that when it is not absolutely clear what to do, one should err on the side of greater expression.
Censoring speech can be a slippery slope. It constitutes a threat to democracy and the rule of law to have a giant corporation like Facebook or Google deciding what is permissible speech -while at the same time the threat of misinformation and abuse of social media by powerful financial actors is one of the gravest democratic concerns we face today.
 Algeria, Brazil, Chile, Costa Rica, Israel, Kazakhstan, the Republic of Korea, Kosovo, Kyrgyzstan, Morocco, Mexico, Peru, Tunisia and the USA.
 Norwood v UK (2004)
 Garaudy v France (2003)
 Seurot v France (2004)
 Jersild v. Denmark
 Vedjeland and Others v. Sweden, 2012.
Ræddi réttarríkið og umbætur í stjórnsýslu af hálfu Feneyjanefndar Evrópuráðsins m.a. í boði stjórnvalda í Jórdaníu. Þetta eru svonefnd Unidem Med námskeið fyrir embættismenn og fulltrúa stjórnvalda fyrir botni Miðjarðarhafs, þ.e. ríkjum Norður-Afríku og í Mið Austurlöndum.
“RULE OF LAW STANDARDS TO LEADERSHIP”
Regional seminar for senior public officials
10th UniDem Med, 4-6 November 2019, Amman, Jordan
Herdis Kjerulf Thorgeirsdottir
Distinguished guests, Ladies and Gentlemen,
I appreciate the opportunity to speak about the Rule of Law in relation to Leadership and the civil service– given the importance of this topic in the work of the Venice Commission.
Reform in the civil service improves the quality of life of the citizens – it also creates better opportunities for private businesses. We are all familiar with the common principles, which are widely recognized as of fundamental value for developing a professional civil service and good governance – the principles that should guide all public servants; rule of law with legal certainty and predictability of administrative actions and decisions, openness and transparency, accountability and efficiency in the use of public resources. We want to see civil servants that are subject to administrative law; recruited on the basis of merit, obliged to take actions and decisions in a transparent and predictable way according to law, free of unjustified pressures, subject to control and judicial review and that are accountable for their actions.
These words may seem like overused phrases but that doesn’t mean they are clichés. No more clichés than the familiar terms of the rule of law, democracy and human rights – the three pillars that all the work of the Council of Europe builds on.
The noble concept of the rule of law is of universal validity. It must be applied in all levels of public power and in private relations as well, as the VC has stated. This is where the now highly appreciated Venice Commission Rule of Law Checklist comes into play.
The Rule of Law Checklist was adopted by the Venice Commission in 2016; subsequently the Checklist was endorsed by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe.
The Rule of Law Checklist has been cleverly described by one government minister “as a gift from the Council of Europe to any nation wishing to take their temperature vis-à-vis the rule of law.” 
The Checklist is a tool for assessing the Rule of Law in any given country from the viewpoint of its constitutional and legal structures, the legislation in force and the existing case law.
The Checklist is based largely on the established standards developed by the Council of Europe, making them accessible and functional, enabling respect for the rule of law to be measured in a detailed, objective, transparent and fair manner.
– a practical tool indeed for authorities as well as civil society as it introduces a new benchmark – five core elements for measuring compliance with the rule of law:
- Legal certainty
- Prevention of abuse/misuse of powers
- Equality before the law and non-discrimination.
- Access of Justice.
The Check list further adds specific, topical challenges to the Rule of Law: corruption and conflict of interest, collection of data and surveillance.
Ladies and gentlemen,
– as I mentioned in my opening remarks there is link between innovation and leadership in the civil service as well as the role of senior civil service in driving change in public administration reform process.
Here in Jordan, his Majesty King Abudallah II has affirmed that the rule of law is the umbrella that protects the march towards democracy and reform in Jordan – a key factor in achieving development and advancement – and in that respect the King has made it a priority to fight nepotism (Wasta) and corruption in all their forms, urging all state institutions to take the measures necessary to eliminate these phenomena. This policy is in line with the priority area of Jordan’s co-operation with the Council of Europe where the promotion of good governance and prevention of corruption are to be in accordance with European and international standards.
The Rule of Law is linked not only to the protection and the promotion of human rights, but also to democracy. The participation of the citizens in the strengthening of the Rule of Law is thus paramount. That is what the Venice Commission calls an “enabling environment”. The Rule of Law can only flourish in an environment where people feel collectively responsible for the implementation of the concept.
It is no less the task of civil society as that of public institutions to promote and protect the rule of law – as where the rule of law prevails it makes the public administration transparent and less subject to abuse by officials.
On the other hand, an exercise of power that leads to substantively unfair, unreasonable, irrational or oppressive decisions not only violates the rule of law but incrementally ruins the social fabric, destroys trust in authorities and makes it harder to solve problems.
It is a sad reality today that trust in government and politicians is widely at an all-time low. Around the world, democracies are distrusted by a majority of their citizens – according to recent surveys. In some of the oldest known democracies – trust appears to be collapsing.
To remedy this situation the Rule of Law Checklist may and will come in handy. Of course, Ladies and Gentlemen, this checklist is neither exhaustive nor final. It should not be taken as a sort of Bible of the Rule of Law. Indeed, the checklist covers the most important aspects of this important principle but it could and it should change over time, to face the challenges of an ever-changing world. Nor is the Rule of Law something that can be achieved once and for all. Implementing the Rule of Law is an on-going task, which requires the commitment not only of the State, but also of the citizens
Ultimately, the general awareness in any society – no doubt enhanced by seminars like this UniDem seminar –will assess, not only whether a civil servant that has abused his/her position is accountable – although important – but even more importantly whether the overall function; the day-to-day accountability practices within the civil service and the degree of respect for the rule of law meet desired objectives.
With these thoughts, let me once again extend to you my wishes for a successful and fruitful meeting.
I thank you very much for your attention.
 Marina Kaljurand: http://website-pace.net/documents/19838/3254453/20170629-ChecklistVeniceRoL-EN.pdf/14cf89df-161c-4595-a9cd-17622d1e680d
 https://www.theatlantic.com/international/archive/2018/01/trust-trump-america-world/550964/ https://www.people-press.org/2019/07/22/trust-and-distrust-in-america/
Sendinefnd á vegum Feneyjanefndar átti fundi með fulltrúum stjórnvalda, þingmönnum stjórnar og stjórnarandstöðu, dómurum stjórnlagadómstóls, fulltrúum ráðuneyta og félagasamtaka í ferð til Kiev hinn 24. október sl. vegna fyrirhugsaðs álits nefndarinnar um nýsett lög um úkraínsku sem ríkistungumál. Úkraínska á undir högg að sækja gagnvart rússneskunni sem víða er töluð, sérstaklega í þéttbýli.