Katrin Nyman Metcalf
Freedom of expression is important as an independent freedom as well as a premise for carrying out other freedoms and democracy. Freedom of expression includes freedom to express one’s thoughts and to impart information – in writing, orally, in image or other form – as well as the right to receive information. Freedom of expression also includes, or example, acts of law regulating access to information and data protection. As many other fundamental rights, the freedom of expression is not an absolute right and can be limited in certain situations and on certain conditions. Such limitations are allowed in order to protect other rights (for example privacy), but also for security reasons. Article 10 of the European Convention on Human Rights expressly states that licensing of television, broadcasting or cinema enterprises is not forbidden.
Generally, it can be said this year, as on previous years, that the freedom expression is guaranteed in Estonia in legislation as well as in practice. There are no significant problems and the situation didn’t change much in 2012. As a noteworthy step the draft act amending the paragraph on incitement of hatred in the Penal Code was presented at the end of 2012. Although the amendment allows application of the paragraph on easier conditions than before and seems to be in accordance with freedom of expression, the court practice upon its coming into force must be kept an eye on, as judging by the experience of other states there is a danger that the ban of incitement of hatred is used to impede making unpleasant speeches instead. It must be kept in mind that freedom of expression means freedom and that even unpleasant speech is protected. Protection from insults and unpleasant speech is not a human right – such statements must be replied through free debate. Vigilance is needed to watch out for the danger that the state or other authorities start deciding over which statements are worth protecting. Unfortunately there are such tendencies in the world regarding, for example, the denial of Holocaust and other historic crimes. No matter how condemnable denial of these events is, if the state is determining what can and cannot be said through its legislation, there is a danger to freedom of expression.
At the end of 2012 the International Telecommunications Union (ITU) held a conference among other things on the topic of the internet, which was preceded by the fear expressed in many location all over the world that international rules limiting the internet would be posed. Although states cannot be forced to join international conventions, such convention would have had a negative effect on states who are not parties to it (including Estonia) as it would threaten the global nature of the internet. Such propositions were made at the conference (for example by Russia) but they weren’t passed. For example, the president of Republic of Estonia made a speech before the conference against any kind of limitations to the internet.
Legislation and institutions on freedom of expression and their development
Estonia’s legal order is in coordination with principles held in democratic states that have freedom of expression, which do not have separate acts of law about print media, and print media publications (books, journals, newspapers) do not require permits for registration or publishing – the number of such publications is determined by the market. States based on rule of law, as does Estonia, have separate provisions about broadcasting and for application of the licence procedure along with the appropriate authorities, among other reasons because broadcasting uses a limited natural resource (radio waves). Digitization (which was carried out in Estonia regarding television in 2010 already) does allow for a much more effective use of the frequencies and to fit in a lot more content, however, there is yet no such situation in the world, where broadcasting is not regulated. On the other hand, there are fewer and fewer limitations in the world and the licensing procedure has been simplified – and that is also the case in Estonia. The internet, however, developed so rapidly and unpredictably that legislation could not keep up, which means that the internet has largely remained unregulated in Estonia as well as in most of the world.
The previous human rights report mentioned the Media Services Act that came into force in January of 2011. Its content had mainly to do with harmonizing the terminology and the procedures regarding broadcasting with the new media rules of the European Union. The new act also made the system of television and radio broadcasting simpler and more flexible, which should have a positive effect on media’s diversity. Estonia already has a rather diverse media market and significant changes haven’t been noticeable since the coming into force of the new act, however, in the long run a simpler and a more flexible system is sure to facilitate freedom of expression.
One of the earlier amendments worth mentioning is the so-called Source Protection Act that was amended in 2010 and received a lot of media attention, which has been discussed in more detail in previous human rights reports. After this law came into force it hasn’t been discussed much and problems related to it have not been raised.
Limitations on media can come from defamation from criminal and/or civil liability, the Data Protection Act or the Penal Code concerning hate crimes, such as, for example incitement of hatred (Penal Code, § 151). Such provisions apply to statements made, regardless of the form in which they were made. However, statements made in the media have more effect due to the wider reach. There has been a discussion on wording of the ban on incitement of hatred in Estonia for some time – the wording of the paragraph made it very difficult to apply, if not impossible. The aforementioned motion to amend was made at the end of 2012. The then Minister of Justice Kristen Michal said about the draft act: “The analysis indicated that a high threshold, before real consequences of incitement of hatred can be talked about, may in some cases lead to actual consequences, which could be avoided in time with a new regulation. The new act would bring our regulation in coordination with the framework decision of the Council of the European Union on combating racism and xenophobia.” One can agree with the minister’s words and even though it is good to see Estonia’s law in coordination with the EU framework decision, the practice after the amendment comes into force must be observed to make sure threat to freedom of expression, which has been observed elsewhere in Europe to an extent, is avoided.
The Supreme Court did not make any decisions on constitutional review regarding freedom of expression in 2012. The European Court of Human Rights did not have a single case involving Estonia and freedom of expression in the past year. The European Court of Human Rights is about to make a decision in the case of Delfi v. Estonia, which the court accepted 11 February 2011. The case has to do with internet comments and would have an effect on the practice of several states, especially as there isn’t much international court practice on this topic. The question is whether the decision of courts of Estonia to penalize Delfi for defamation made in the comments is in accordance with the European Convention on Human Rights.
A decision of the Supreme Court partly associating with freedom of expression is a decision of the Administrative Law Chamber on presumption of innocence and damage to the person’s honour and reputation (Constitution, § 22 and § 17) and on protection of privacy (Constitution, § 26). The case has to do with data published in 2008 in a publication called Vangla Ekspress. The appeal was allowed, as it was found that several constitutional rights had been breached. The aforementioned rights allow to limit freedom of expression, and the court judgment discusses this relationship. The court judgment analyses the content of media, looking at ethics of journalism as well as judgments made by the European Court of Human Rights on this issue. What makes this situation unusual is that the publication that breached the person’s rights had been a publication of the prison system not aimed at the public.
The court mentions that the aim of the Personal Data Protection Act is to create a balance between fundamental freedoms of the data subject and the freedom of expression. On the other hand: “The state cannot rely on the constitutional freedom of expression and press in publishing personal data in its publications (Constitution, § 45(1)). The state is not the bearer of fundamental rights, it is the addressee.” The court refers to EU directive 95/46/EU, which states that exceptions can be made in data protection for the purpose of guaranteeing freedom of expression, including for journalistic purposes or for the interest of artistic or literary expression. Publications and channels of interior communication of state authorities, which are not aimed at the public are not deemed to be media channels and do not function for journalistic purposes, they belong to the realm of interior public relations of the body. The court finds that publishing personal data of the applicant in the articles of Vangla Ekspress was not unavoidably necessary: “The information necessary to guide the officials could clearly have been communicated without mentioning the applicant’s person and quoting the evidence of the criminal case containing his personal data.”
Merely the fact that certain data has previously been made public with the person’s consent or in some other form based on an act of law does not mean that additional publication has no substantial consequences as instances of publication may take very different forms and have different intensity. Here the media has a different role as in other forms of publication. Publishing data that was previously published at a court session in a publication, as a rule, significantly broadens the circle of notified persons. The Supreme Court refers to the Krone Verlag and others v. Austria judgment of the European Court of Human Rights (17 January 2012, 33497/07), Kurier v. Austria (17 January 2012, 3401/07) and Eerikäinen and others v. Finland (10 February 2009, 3514/02). It is a separate decision whether repeated publication is a permissible and proportionate breach of private life. The Personal Data Protection Act requires persons processing personal data for journalistic purposes to follow the principles of journalistic ethics, which mainly stem from the code of ethics of the Estonian press established by the Estonian Newspaper Association and the international principles. The journalistic ethics, acts of law and the practice of the Supreme Court differentiate between statements of fact and value judgments in disputes over honour and defamation of good name.
Administrative Law Chamber of the Supreme Court quotes the appraisal of the Civil Chamber and agrees with it regarding actions damaging honour and defamation of the good name that information disseminated in any way or form which contains or may facilitate denigratory appraisals may be in breach of § 17 of the Constitution. The case at hand involved a prisoner and the articles in question contained several facts facilitating denigratory appraisals about him (including excerpts from phone conversations and the diary of the applicant). There is also the question of inviolability of private and family life stemming from § 26 of the Constitution. The court mentions that the protection of personal data is an important area of protection of private life. The contested articles identifies the applicant by his name and reports on his relations with the prison administration and his fellow prisoners. Although committing of an offence is no longer delicate information after a public court session, it does not mean, according to the court, that this information is not a personal data.
The Supreme Court analyses the relationship between different rights, including freedom of expression. Even though the judgment does not express anything new it supports the protection of personal data, but also the principle that limitations to freedom of expression as well as other rights must be proportional and be based on an analysis of various rights.
In addition to acts of law and the court system Estonia also has a well constructed and functioning system based on self regulation. Complaints can be filed with courts only if there has been a violation of law, not if there has been a breach of ethics or good practice. Complaints can also be filed with Avaliku Sõna Nõukogu or the Estonian Press Council. The advantage Estonia’s system of self regulation over self regulation in several other states is that also certain broadcasting channels and the internet media (Delfi) are parties to it. In many states the self regulation is for print media only. In 2011 the number of complaints processed at the Estonian Press Council was highest of the last ten years (67 complaints and 61 decisions). In 2012 the corresponding figures were 49 and 38, which indicates there were significantly fewer complaints. In 2011 there were 33 condemning decisions and 28 acquittals – the corresponding figures in 2012 were 18 and 20. The number of preliminary agreements and rescinded or rejected complaints remained roughly the same as usually (respectively 3 and 1). In addition there’s also Avaliku Sõna Nõukogu, which deals with questions of media ethics and processes complaints. In 2012 Avaliku Sõna Nõukogu received significantly fewer complaints than in 2011 (respective figures were 23 and 40). The number of complaints was also much higher in two previous years as in 2012. The number of decisions was also smaller, however the proportion of condemning and acquitting decisions was roughly the same (3 acquittals and 7 condemning decisions – the respective figures in 2011 were 11 and 20).
The system of self regulation functions well in Estonia. It is difficult to tell based on figures of one year whether the decrease in complaints is an aberration or trend, and if it is trend what has caused it. Generally people are aware of existence of self regulation and have heard that it is possible to file complaints there. There is no reason to think that awareness or interest had decreased in 2012. The small number of complaints is a coincidence rather than the signal that media publications dealt with ethicals questions more themselves.
Public discussions and trends
A problem of the media-scape that is constantly mentioned in public discussions is the lacking culture of communication and discussion as well as institutions’ aversion to criticism. The last topic was particularly hotly discussed in 2012, among other things, in connection with the funding scandal of political parties. There have been no new developments last year in relation to another topic that was mentioned last year – using tax payers’ money to set up a city information television channel.
As it is known, Estonia’s characteristic is that access to information predominantly takes place via the internet and cross-use of databases. Estonia’s experience still sets an example in the rest of the world. There were no significant problems with illegal access to information or technical problems in 2012.
A problem that has been mentioned before regarding Estonia’s media-scape is that Estonian and Russian language media are largely different and that persons with different mother tongues live in separate media spheres – more for the fact that Russian speaking population largely consumes Russian media. This situation has not changed in the past year.
- Continue intense work on the so-called draft act on incitement of hatred incorporating the respective EU framework decision and amending the provisions of the Penal Code.
 For example at the conference held on the Human Rights Day on 10 December 2012 by the Estonian Institute of Human Rights.
 Available at: http://www.just.ee/57068.
 Factsheet on the Court’s case-law and pending cases on Estonia. Available at: http://www.echr.coe.int/NR/rdonlyres/6298BE53-5700-4B31-BF32-4BDFDAF1224B/0/PCP_Estonia_en.pdf?.
 Judgment 3-3-1-3-12 (12 June 2012).
 Ibid., para 30.
 Ibid., para 32.
 Ibid., para 24.
 Ibid., para 25.
 Available at: http://www.eall.ee/pressinoukogu/statistika.html.
 Available at: http://www.asn.org.ee/statistika.html.