5 - chapter

Freedom of expression

Author: 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 sections 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 and data protection, which is related to it), for security considerations, for curtailing hate speech, or for other reasons, such as broadcasting licensing and other regulation of communication technology.

Freedom of expression in Estonia is generally in a good state, and has been for a long time, which means that the freedom of expression is in a stable state. The media sphere in Estonia is rather diverse for such a small state. Internet media is consumed in large quantities, including foreign media.[1] There is little political pressure on the media. In the current period there have also been emotional and fierce debates (especially on internet comment boards) on controversial topics (such as the Registered Partnership Act and the refugees), which draw attention to potential negative consequences of freedom of expression. Even though several media publications have created systems for taking down unsuitable commentaries and try to improve the social culture, it is often insufficient.

There are examples on the Estonian media sphere that indicate how other states can abuse free and open societies in spreading propaganda. The ever-increasing propaganda by the Russian media, which is partly aimed at Russian-speaking persons living in Estonia can freely be spread in Estonia, because the media sphere here is free. Social media is used particularly actively.[2]

Legislative developments

There were no significant amendments to legislation regarding freedom of expression in the period considered in the report. Changes in data protection will take place when the EU General Data Protection Regulation (2016/679) that was adopted in 2016 will come into force in May of 2018. At the moment the various organisations that handle data are busy preparing for adoption of the Regulation. Although it will bring about important practical changes, it won’t change the situation where fundamental freedoms such as freedom of expression and privacy are protected. Amendments to the Public Information Act and the Archives Act came into force in January of 2016, which clarify on re-use of information.[3]

Estonia belongs among the states with the best access to the internet in the world. Mobile internet is used particularly often. Fixed broadband is less common, especially in the country. In January of 2017 amendments were made to the Electricity Market Act (came into force in March of 2017), allowing for use of existing infrastructure for better access to broadband in the entire state.[4] The Technical Regulatory Authority has created an interactive map indicating which services exist in various places.[5]

The Riigikogu discussed making amendments to the Penal Code regarding making description of child pornography in literature not punishable, which had been initiated by 13 members of the Riigikogu after the heavily covered by the media court case with writer Kaur Kender, where he was accused of child pornography based on one of his short stories. The amendment was rejected. The need to amend the Penal Code and create clearer rules regarding hate speech has continued to be under discussion.

Court Practice

The Supreme Court heard a few matters concerning freedom of expression in 2016. The judgments generally indicate that the court recognizes the importance of freedom of expression. For example, the court investigated whether it is possible to fine journalists who went against the explanation of the judge and published information about the court session. The Supreme Court found that in the session phase outside the rules of court session in camera freedom of expression cannot be restricted.[6]

The background was that the judge conducting proceedings explained to the journalists in the courtroom after the session that at the time it was forbidden to publish the questioned victim’s and witnesses’ statements and to refer to them. Nevertheless, the next day Õhtuleht published in paper and web version the article by the journalist who had been in the courtroom, which quoted in detail the statements given by the victim and referred to statements of the witnesses. Harju County Court fined the journalist with 600 euros. The Circuit Court revoked the fine, and the Supreme Court agreed with the Circuit Court.[7]

Also, the second Supreme Court judgment in a somewhat similar matter ended with the court supporting freedom of expression and confirming that it can be restricted only in established situations.[8] This concerned the legal representative of the victim in a criminal case, who disclosed information about pre-trial procedure while making a comment to Delfi. He was awarded a fine of 1000 euros. Tallinn Circuit Court upheld the decision. The Supreme Court investigated thoroughly the provisions of the law about who and how can decide such fines and found procedural law to have a gap. This was the main reason why the fine was revoked and the explanation states that any restriction to freedom of expression can only be based on clear acts of law.[9]

The Supreme Court case, which involved an appeal against the Data Protection Inspectorate for termination of proceedings is also interesting, as there a private person disagreed with the Inspectorate’s decision that data protection had not been violated. The case is interesting as the public interest and freedom of media stood against data protection. The Supreme Court cites the European Court of Human Rights. The judgment of the Supreme Court remained within the bounds of evaluating whether the Data Protection Inspectorate had adhered to consideration rules as the Inspectorate applies the specific monitoring measure based on consideration rights. The Supreme Court mentions: “the judicial panel notes that the press has a wide discretion due to the nature of freedom of press to determine the circle of topics concerning public interest. Lack of public interest could be stated for example if details of private life are published, which have no association with public interest or contribute to social debate. Public interest should be lacking completely and clearly, because if it does not the executive power would have far too much discretion in the course of state supervision to decide which topics a journalistic publication may write about, and which it cannot. This would distort the freedom of press.”[10]  Based on this and the evaluation about how the press had used the data the court came to the conclusion that the Data Protection Inspectorate had acted correctly.[11]

The last court case of interest is the reference for a preliminary ruling to the Court of Justice made in April of 2016. The Court’s opinion was asked on whether it is in concordance with the Regulation 1215/2012 regarding jurisdiction in matters relating to tort that damages are claimed for the allegedly defamatory internet content in every state where the content is available. The European Court of Justice is yet to publish their opinion, but on 13 July 2017 the opinion of the Advocate General was published who believes that: “a legal person which alleges that its rights have been infringed by the publication of information on the internet can bring proceedings for damages for the pecuniary loss caused before the courts of the State in which that legal person has its centre of interests.”[12]

The aforementioned court case regarding writer Kaur Kender’s charge of child pornography has gained a lot of attention. Kender was acquitted in county court as well as in circuit court and neither party appealed.

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 submitted to the Estonian Newspaper Association and the Estonian Press Council as well as the ethics adviser of public broadcasting regarding complaints about public broadcasting. In addition to the press the system includes some broadcasting channels and internet media (Delfi). The number of complaints stays rather similar each year, but has risen a little recently. In 2016 there were 84 complaints and 80 decisions (in 2015 the figures were 75 and 64). In 2016 there were 42 acquittals and 38 condemning decisions, in 2015 there were 33 acquittals and 31 condemning decisions.[13] Looking at the statistics of various years it could be said that the system is generally well known and working. The Estonian Press Council handles media’s ethical questions and processes complaints on the issue. In 2016 the Estonian Press Council received 27 complaints – 5 of them dismissing and 8 condemning.[14] These figures have been similar over the years. People are generally aware of existence of self-regulation, submitting complaints is not difficult and the organs handle the cases submitted in the prescribed manner.

Good practices

Estonian legislation and self-regulation is in concordance with the rules in force in Europe. A good practice that is characteristic to Estonia is the still high level and well-functioning e-governance. For example, access to information via e-governance is easy. Estonia is active in the context of internet self-regulation – Freedom Online Coalition,[15] the goal of which is to create rules to protect freedom of internet while being aware that it may also bring about dangers is an example of that

Noteworthy public discussions and trends

Even though Estonia’s media sphere is quite diverse there has been some consolidation recently and the same owners now possess several media publications, which may be a threat to diversity. At the same time the social media and informal media publications distributed through it are of increasing importance.

The Registered Partnership Act which was passed in 2014 has continued to be debated in Estonia’s society, especially because the implementing provision has still not been passed and the Minister of Justice has publicly said that it is being delayed on purpose. The topic is often discussed in media. The media allows to express various opinions and generally covers different aspects. Since 2015 there has been a lively discussion on the topic of refugees, where there have been comments (especially in internet comments), which have been close to hate speech or crossed lines that have been set in most democracies in Europe. This debate has calmed down somewhat as the perceived dangers have not come true.

Let it be reminded that freedom of expression also means the freedom to express negative and even to an extent the kind of information that splits society, if it does not cross the border of inciting hatred and violence. We have also mentioned in earlier reports that freedom of expression works if it is possible to publish and discuss various points of view. Unfortunately, often the lacking culture of communication, which can be detected in Estonia in social media at least, can mean that people refrain from taking on a public role. Unfortunately, there is no progress to be seen in this area. As a short-term solution a real possibility to punish incitement to violence should be created.

The propaganda in Russian media continues to be a worry as a large portion of Estonia’s Russian speaking population consumes largely Russian media. Attempts to increase accessibility and diversity of Estonian media in Russian language, such as the Russian language channel created with the Estonian Public Broadcasting, which started transmitting in September of 2015 cannot compete with Russian media. This means that a considerable portion of the population lives in a different media sphere as most Estonian people. Nevertheless, greater effect on society has not been detected, however, in a tense political state such a fact can prove to be potentially dangerous.

Recommendation

  • Public debates on controversial topics such as the Registered Partnership Act and the refugees in the past few years have shown there is need for clearer rules on hate speech. We recommend a review of the concerned acts of law in the near future and starting work on the necessary amendments.

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[1]  Good language skills make it possible. Estonia belongs among the states in the world where foreign languages are spoken. Available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Distribution_of_people_aged_25%E2%80%9364_by_knowledge_of_foreign_languages,_2007_and_2011_(%25)_edu15.png

[2] Estonian Internal Security Service Annual Review 2016. Page 9.

[3] State Gazette I 06.06.2016.

[4] Elektrituruseaduse muutmise ja sellega seonduvalt teiste seaduste muutmise seadus [the act amending the Electricity Market Act and other associated acts]. State Gazette I 25.01.2017

[5] Available at: www.netikaart.ee

[6] RK 3-1-1-74-16

[7] Ibid.

[8] RK 3-1-1-80-16

[9] Ibid.

[10] 3-3-1-85-15 Lõik 23

[11] 3-3-1-85-15

[12] Judgment C-194/16 Bolagsupplysningen and Ilsjan.

[13] Statistics 2007–2016. Estonian Newspaper Association. Available at: http://www.eall.ee/pressinoukogu/statistika.html. (Visited 25 September 2017).

[14] Statistics (2011–2016). Estonian Press Council. Available at: http://www.asn.org.ee/statistika.html. (Visited 19 September 2017).

[15] Available at: https://www.freedomonlinecoalition.com/

 


Author

  • Katrin Merike Nyman Metcalf on kaasataud professor Tallinna Tehnikaülikooli õiguse instituudis, e-Riigi Akadeemia juriidiline ekspert ja uuringute juht ning töötab rahvusvaheliselt konsultandina peamiselt kommunikatsiooni õiguse alal aga ka kosmoseõigusega. Katrin on töötanud rohkem kui 50. eri riigis. Katrinil on PhD Uppsala Ülikoolist (1999, kosmoseõigus).