Katrin Nyman Metcalf
Political and institutional developments
Freedom of expression is stated in Article 10 of the European Convention on Human Rights (ECHR) and in paragraphs 44–46 of the Constitution of the Republic of Estonia. Freedom of expression is important in itself as well as a prerequisite for exercising other freedoms, and as a basis for a functioning democracy, and entails the freedom to express one’s opinion and impart information – whether in writing, verbally, as images, or by other means – and the right to obtain information. Freedom of expression includes acts of law regarding media, access to information, and data protection. Freedom of expression can be restricted in certain circumstances and on certain conditions for the protection of other rights (for example, privacy), for security considerations, for curtailing hate speech, or for other reasons, such as broadcasting licensing.
Also for 2014 and 2015 it can be said that freedom of expression in Estonia is generally in a good state, and has been for a long time, which means that the state of freedom of expression is sufficiently stable. The media sphere in Estonia is rather diverse for such a small state. Internet media is consumed in large quantities. There is little political pressure on the media when compared to other states in the world. This does not mean there are no problems – and they have been covered in the annual human rights reports in previous years. These problems are partly related to issues in other fields, such as discrimination, transparency of activities of political parties or using tax payers’ money for political propaganda. In the current period there have been emotional and oftentimes fierce debate on various topics (the cohabitation act and refugees), which have indicated possible negative consequences to freedom of expression if acts of law, for example, regarding hate speech, are lacking.
In 2014 international attention was drawn to the fact that Estonia arrested an Italian journalist (the ex-member of European Parliament), who carried a ban for entering the country as he is being suspected of pro-Kremlin activities, activities against state. A few Russian journalists were arrested for the same reason. There was concern for general increase in propaganda in Russian media, which was partly directly aimed at the Russian-speaking population in Estonia. It is being discussed on European Union level whether and how the EU could support the correct Russian language media and independent news in Europe and Russia. Creation of the new Russian language television channel with the Estonian Public Broadcasting is an important achievement. The channel started broadcasting on 28 September 2015.
An important event, which was covered in the previous report and was also topical in 2014 and 2015 was the European Court of Human Rights judgment in Delfi v. Republic of Estonia.[1] The final solution in the case came on 16 June 2015 when the Grand Chamber confirmed the first judgment of the ECtHR, in which Estonia was acquitted.
Legislative developments
The Act amending the Gambling Act, the Media Services Act and the Advertising Act was announced in February of 2015. The amendment mostly has to do with protection of gamblers and it concerns media only with regards to sponsor messages in the audio-visual media.
The Estonian Technical Surveillance Authority had adopted the tasks of the Ministry of Culture in the field of media with the 2013 amendments to act of law. The amendments to Media Services Act came into force in 2014. The new system is generally in accordance with the norm in Europe, as regulation of communication ought to be the jurisdiction of an independent institution rather than a ministry.
Amendments to paragraphs against inciting hatred (with the aim of bringing regulation more into concordance with the Council of the European Union framework decision against racism and xenophobia), which have also been discussed at round tables organised by Ministry of Justice for the past few years, were not adopted in 2014, nor have they been until now in 2015. The paragraph was amended only insofar as criminal organisations are no longer specifically mentioned. Incitement of hatred was even more sharply under political scrutiny in the summer of 2015 in regards to the refugee debate. Especially the internet media carried messages, which according to principles accepted in several European states clearly crossed the line into hate speech. In the beginning of September, for example, the Chairman of European Union Affairs Committee of the Riigikogu said that there ought to be punishment for hate speech, but the Chief Public Prosecutor deemed it necessary to review the acts of law that are in force.[2]
It was discussed at the hate speech debate already in summer of 2014 that the definition of public space defined in acts of law should be reassessed in order to clarify whether it could include the internet. The acting Minister of Justice Reinsalu mentioned in September of 2015 that the previously prepared draft act should be looked at again and discussed with various parties. Yet he has also stated that tolerance is hard to construct in criminal justice.[3] Therefore, there is hope that necessary amendments to acts of law will be processed, but at the moment it is impossible to say when it could happen.
Court practice
The Supreme Court did not make any decision on constitutional review regarding freedom of expression in 2014. There was a certain link to the topic in the judgment of 20 March 2014 in case 3-4-1-42-13 initiated by the Chancellor of Justice.[4] The Supreme Court decided to declare § 251 (2) of the Code of Criminal Procedure Implementation Act unconstitutional insofar as it does not guarantee an effective monitoring system in regard to justifiability of certain surveillance activities. The case is connected to freedom of expression in the aspect that has to do with access to information. The court states that: “with surveillance activities the state processes personal data, doing so by mostly keeping it a secret from the data subject, or by concealing the fact of data processing as well as its content from the person.”[5] Although it is unavoidable in the situation it should not mean there are no rules established for the protection of persons. Limitations to rights in democratic society have to be necessary and not distort the essence of freedoms and rights that are being limited. Every breach of a fundamental right has to adhere to all norms of the constitution, and be formally and materially in accordance with the constitution.
Civil Chamber of the Supreme Court decided on 25 May 2015 in case no. 3-2-1-55-15 Eerik-Niiles Kross’ action against Äripäev.[6] The application had to do with refutation of untrue data or determining whether publishing value judgments is against the law, and compensation for non-patrimonial damage. The Supreme Court agreed with the County Court, but altered the reasoning to an extent. The Supreme Court’s appraisal that the action can also be secured if there has already been significant damage to the reputation of the applicant by publishing the claims / value judgments and a negative opinion has been created with the public, is of interest. The court says that if untrue statements or unfitting value judgments have been published about the person, it is possible to ban the respondent from publishing such statements until a court judgment has been reached, in order to prevent increase of damage. At the same time the court emphasizes that such limitation of freedom of expression aimed at the future must only be possible in special cases.[7]
The second judgment on the topic in the Civil Chamber of the Supreme Court was made on 18 February 2015 in case no 3-2-1-159-14,[8] where Tallin Circuit Court’s judgment was quashed and the case was sent to a new hearing. The plaintiff Oleg Kozlov, who is bearing a life sentence claimed that Kanal 2 in its 26 April 2013 television show „Eluaegsed“ demeaned his dignity and breached his right to family life and privacy. According to the plaintiff the television show was one-sided and extremely negative. The Supreme Court mainly had to do with the plaintiff’s claim for damages. The court mentions that demeaning the dignity of a person with a value judgment is against the law according to § 1046 (1) of the Law of Obligation Act if the value judgment is unsuitable, which may be due to its unfoundedness or the way of expressing it.
The Delfi case at the ECtHR, which the previous annual report discussed more at length, remained topical. To be exact, the European Court of Human Rights judgment – which supported Estonian courts’ decision that Delfi was responsible for the internet posts – was appealed to the Grand Chamber. This is a fairly unusual measure, which is used if the Court’s judgment establishes an important precedent. Delfi case is an important one as it is the first international court judgment on internet comments. The judgment[9] was made in June of 2015 and the Grand Chamber upheld the ECtHR’s (and thereby also the Estonian courts’) judgment.
Statistics and surveys
In addition to acts of law and the court system Estonia also has a system based on self regulation. Complaints can be filed with Avaliku Sõna Nõukogu or the Estonian Press Council. In addition to the print media, certain broadcasting channels and the internet media (Delfi) also participate in the system. The number of complaints remains the same year on year. In 2014 there were 51 complaints made and 43 decisions (in 2013 those figures were respectively 56 and 52). As of 30 June 2015 there had been 34 complaints. The ratio between acquittals and condemning decisions also remains largely the same: in 2014 there were 21 acquittals and 22 condemning decisions, in 2015 so far there have been 13 acquittals and 17 condemning decisions (in 2013 respectively 25 and 27). The only slightly more noticeable change compared to the previous years has been the number of previously made agreements – 7 in 2014, and 3 so far in 2015. There had been fewer of them before, or none at all.[10] Looking at the statistics of various years, it could be said the system is generally well know and is working. Avaliku Sõna Nõukogu deals with questions of media ethics and processes complaints in the area. In February of 2015 the statistics for 2014 was not yet available on their website. In 2013 Avaliku Sõna Nõukogu had 30 complaints – 10 dismissals and 8 condemning decisions.[11] Avaliku Sõna Nõukogu enables making public addresses on media topics on their website. People are generally aware of existence of self regulation and the organs process the cases submitted in the foreseen manner.
The discussion on privacy also continued in 2014 and 2015. The Estonian Institute of Human Rights carried out an extensive survey in 2014 on the views of the residents of Estonia on privacy, especially regarding social media. The survey was discussed at the human rights conference in December of 2014. The survey showed that people place a lot of emphasis on the person’s responsibility in using the new media and social networks.[12]
Good practices
Acts of law in Estonia and the self regulation is in accordance with the rules in Europe. A good practice characteristic to Estonia is the continued access to information via e-governance (e-riik). International interest has been shown for the fact that in Estonia people have easy access to checking whether various institutions have looked at their data.
Noteworthy public discussions and trends
A lot of discussion in Estonian society arose from the Civil Partnership Act (Cohabitation Act), which Riigikogu adopted in October. The debate was heated at times. This act has been named the act of law processed with the most passion in Estonia since regaining independence.[13] The media allowed to express various opinions and in general mediated various points of view in a professional manner. In 2015 the debate is even more intense regarding refugees, in media, as well as in political institutions. There have been several speeches made in this debate, which have been close to hate speech or crossed the lines, which have been set in most European democracies. The main problem are the internet comments. The tone used in internet environments is often very rough and insulting. It is clear to see with controversial topics. Even though media publications have created various systems for taking down unsuitable comments and attempt to improve communication culture, there have nevertheless been clearly inappropriate comments.
It has to be remembered that freedom of expression also means freedom to express negative and even to an extent information dividing society, if it does not cross the line and become inciting hatred and violence. Therefore, fierce debate on controversial topics may seem negative, but could still be a sign that the freedom of expression is working. At the same time, this positive approach to free media is only possible if certain lines are applied. Creating a better communication culture is a long term process, but unfortunately no remarkable process can be seen in that in Estonia. As a short term solution, a realistic option of punishing inciting violence should be created.
A worrying trend in the current period is the increased propaganda in Russian media. In connection to the Crimean occupation by Russia and Russia’s military activities in Eastern Ukraine the media in Russia has become more and more propagandistic; the independent media is limited, public criticism of the government is more difficult. It is known that a large portion of the Russian-speaking residents consume largely Russian media, which means that they live in a different media landscape than most of the Estonian residents and take part in the propagandistic and partly hatred and violence inciting tone of the Russian media. As propaganda is partly directed at Estonia and other Baltic state, this media situation is a worry, although, so far, not much of an effect on the residents has been detected.
The case of the detained (in December, for a short time, until leaving the country) Italian journalist was also directly linked to Kremlin propaganda as the journalist was known as Kremlin-minded and suspected of coming to Estonia to participate in Russian operations of influence. The journalist (who is also an ex member of the European Parliament) initiated court proceedings against the state of Estonia regarding the ban to enter the state, in January of 2015.
Recommendation
- The public discussions on controversial topics in the past few years, such as the Civil Partnership Act and refugees, have shown a need for clearer rules on hate speech. We recommend reviewing the relevant acts of law in the near future and make necessary amendments to acts of law.
[1] Delfi AS v. Estonia. Application no. 64569/09. 16.06.2015. Avalable at: http://hudoc.echr.coe.int/eng?i=001-155105.
[2] „Palling: vihakõne pidamise eest tuleb ette näha karistus“ [Palling: hate speech must be punished]. Postimees. 7.09.2015. Available at: http://www.postimees.ee/3319285/palling-vihakone-pidamise-eest-tuleb-ette-naha-karistus.
[3] „Reinsalu vihakõnest: sallivust on kriminaalõiguslikult väga raske konstrueerida“ [Reinsalu on hate speech: tolerance is hard to construct in terms of criminal law]. ERR news. 8.09.2015. Available at: http://uudised.err.ee/v/eesti/337c459a-39e1-4599-adf4-194131f93558/reinsalu-vihakonest-sallivust-on-kriminaaloiguslikult-vaga-raske-konstrueerida.
[4] Lahendid [Judgments]. Supreme Court. Constitutional Review Chamber. Judgment. Case no. 3-4-1-42-13. Available at: http://www.riigikohus.ee/?id=11&tekst=222571298.
[5] Ibid. Section 39.
[6] Lahendid [Judgments]. Supreme Court. Civil Chamber of the Supreme Court. Judgment. Case no. 3-2-1-55-15. Available at: http://www.riigikohus.ee/?id=11&tekst=RK/3-2-1-55-15.
[7] Ibid. Section 11.
[8] Lahendid [Judgments]. Supreme Court. Civil Chamber of Supreme Court. Judgment. Case no. 3-2-1-159-14. Available at: http://www.riigikohus.ee/?id=11&tekst=RK/3-2-1-159-14.
[9] Delfi AS v. Estonia. Application 64569/09. 16.06.2015. Available at: http://hudoc.echr.coe.int/eng?i=001-155105.
[10] Statistika 2007–2015 [Statistics 2007–2015]. Estonian Press Council. Available at: http://www.eall.ee/pressinoukogu/statistika.html. (Visited 11 September 2015).
[11] Statistika [Statistics] (2003–2013). Avaliku Sõna Nõukogu. Available at: http://www.asn.org.ee/statistika.html. (Visited 11 September 2015). No newer data available.
[12] Privaatsus inimõigusena ja igapäevatehnoloogiad [Privacy as human right and everyday technologies]. Estonian Institute of Human Rights. Available at: http://www.eihr.ee/privaatsus-inimoigusena-ja-igapaevatehnoloogiad/.
[13] Arvamus. „Allar Jõks ja Mart Luik: kõige vastuolulisema seaduse aasta“ [Opinion. Allar Jõks and Mart Luik: the year of the most controversial act of law]. Postimees. 17.02.2015. Available at: http://pluss.postimees.ee/3095005/allar-joks-ja-mart-luik-koige-vastuolulisema-seaduse-aasta.
