4 - chapter

Freedom of expression

Author: Katrin Nyman-Metcalf

Key topics

  • The media landscape continues to be diverse and freedom of expression is generally protected.
  • Self-regulation of the press is working.
  • Political pressure on media and journalists who are critical of the government is worrying, in case of the newspaper Postimees there are examples of interference by the owner.

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. This entails the freedom to express one’s thoughts and impart information in various ways and the right to obtain information. Media-related acts, access to information and data protection also have to do with freedom of expression. Freedom of expression can be restricted in certain circumstances and for protection of other rights (for example, privacy and data protection that is related to it), for security considerations, for curtailing hate speech, or for other reasons, such as broadcasting licensing and other communication technology regulation.

The state of freedom of expression in Estonia has been quite good since regaining of independence. The situation continues to be quite good, although this year – after the new government took office, where the participating political parties have expressed doubt about universality of freedom of press or human rights, for example – there have been several challenges and political pressure on the media. This far the media has largely been able to stand up to the pressure and there have been no direct restrictions to freedom of expression.

For the first time in a long while the international media organization Reporters without Borders (RSF) published a warning in July of 2019 about the situation of the Estonian media. The RSF drew attention in the press release[1]published on 2 July 2019 on the fact that the owner of one of the leading media groups, who is also a member of Pro Patria, has interfered in the editorial side of the newspaper Postimees. He had personally selected the leading employees and in other ways remarkably supported a conservative world view in the newspaper’s content and symbols used in the paper. For example, there now stands a text under the title of the Paper “We stand for preservation of Estonian nationality, language and culture through the ages”. Postimees has also created a section in the paper called “Our Estonia”, about which it is unclear to what extent this represents independent journalism and to what extent it is opinion pieces and ordered content. The Estonian Press Council has said about one of the articles published under this headline that the article confuses the author’s assumptions and the news without the author distinguishing what his opinions and assumptions are and what are the official views of the other institutions (in this case the Ministry of Social Affairs).[2]Lack of bias in this section of the paper has also been condemned in the wider public debate. Roughly at the same time that these occurrences took place several editors left Postimees, which the newspaper explained as natural developments, but which is being interpreted by several observes as dissatisfaction with the political direction of the paper.

At the same time, the media landscape remains to be rather diverse for such a small country, for example, thanks to the fact that internet media and foreign press is being consumed to a rather large extent.[3] The media sector is generally open, which also means that it can be abused, which does happen occasionally through propaganda departed via the Russian media.

Legislative developments

No remarkable changes have taken place here, however, the statements of the government mean that a certain worsening of the situation can be admitted, as earlier intentions regarding certain amendments have been retracted. This applies to criminalisation of hate speech. In February of 2019 the Ministry of Justice removed references of intent to review the need to criminalise hate speech, thereby publicly rejecting the European Commission’s proposal that all Member States should consider criminalising online hate speech.[4] The new government has not dealt with the topic and they are rather negative about criminalisation in the discussion.

The new Personal Data Protection Act[5] was passed in the period under review, which came into force 15 January 2019 and which deals with the matters that constitute national legislation according to the EU data protection regulation (2016/679) passed in May of 2018. This includes, for example, processing of personal data for journalistic purposes, which is allowed without the data subject’s consent, if there is public interest and it is in accordance with principles of journalistic ethics.[6] Publication of personal data must not excessively damage the rights of the data subject.[7] In 2018 amendments were made to the Public Information Act, for example, in provisions concerning managing websites and mobile apps, mainly that institutions must publish information in mobile apps as well.[8]

Court practice

The Supreme Court decisions made in the period under review have to do with the relationship between availability of data and protection of personal data. Civil Chamber of the Supreme Court explained in its 13 March 2019 judgment[9] the relationship between data protection and access to data in relation to banks and keepers of disturbances to payment registries.[10] The court emphasised that publishing of even correct data on the website of the disturbances to payment register may be unlawful if the provisions of data protection have not been followed, for example, for excessively damaging the data subject’s justified interests by publishing unimportant or irrelevant data. It must be considered in each specific case, which data to deliver and whether the need to deliver outweighs the breach of data subject’s rights and interests. It is important to ascertain who is the controller in case of processing personal data – there may be more than one.

The court mentioned in its Administrative Law Chamber 17 October 2018 judgment[11] that the Public Information Act obliges the local government, upon receiving a request for information (but not as an active disclosure obligation) to provide data on remuneration of local government employees in a personalised form. Two contradictory fundamental rights must be weighed: the right to receive information from the local government about their activities (§ 44(2) of the Constitution) and the right of local government employees to private life (§ 26 of the Constitution). In case of differing opportunities for interpretation the one must be preferred, which guarantees the greatest protection of constitutional values. Purposes of various provisions must be kept in mind, for example, the importance of disclosure in order to avoid corruption. The court remarks that “in an open society, the public, including the press, also play an important role in preventing the misuse of public funds, which cannot be fully replaced by the control of the public authority itself. So, the disclosure of information plays an important part in deterring and preventing potential infringements. While the control of the public authority is usually limited to the assessment of legality, the public also draws attention to ethical questionability.”[12]

The third case that I mention is the Administrative Law Chamber 22 May 2018 judgment[13] about fundamental rights stated in § 44 subsection 3 of the Constitution that every person has the right to have access to information held about them by public authorities and local authorities. The court explains that the right also expands to the relationship with the body carrying out the public obligation and regardless of how the person found out about the data processing, or if he is not even aware of it but wishes to know, for some reason, whether and which of his personal data is being processed by an administrative body. The rights can be restricted based on the Personal Data Protection Act, special acts or the directly applicable legislation of the European Union.

On 17 October 2017 the European Court of Justice issued a preliminary ruling on the Supreme Court’s application on the question of whether complaints can be filed with a court about allegedly defamatory online content in any country where the content is available.[14] The ECJ responded that that they can not, as regards the damage caused by the claim, it is possible to refer it to the court of the Member State where the centre of his or her interests lies or in some situations, where the damage has occurred elsewhere, in the state where the damage occurred.[15]

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 Sõnu Nõukogu or the Estonian Press Council, as well as the Estonian Public Broadcasting journalistic ethics adviser. In addition to the print media, certain broadcasting channels and the internet media (Delfi) also participate in the system. The number of complaints lodged with the Press Council remains rather similar year on year. In 2018 there were 84 complaints and 81 decisions made (in 2017 the figures were 87 and 64 respectively. In 2018 there were 59 acquittals and 22 condemning decision, in 2017 there had been 34 acquittals and 30 condemning decisions.[16] Avaliku Sõna Nõukogu deals with questions of media ethics. In 2018 Avaliku Sõna Nõukogu had received 19 complaints – 4 dismissals and 1 condemning decision.[17] The number of complaints was lower than in previous years (except in 2014). People are generally aware of the existence of self-regulation; it is not hard to submit complaints and the organs deal with the submitted cases in the prescribed manner.

Good practices

Estonian legislation and the self-regulation is in accordance with the rules in force in Europe. A good practice that is characteristic to Estonia is the high-quality e-governance that works well. For example, e-governance provides good access to information. Estonia is active in internet self-regulation, participating in Freedom Online Coalition,[18] the purpose of which is to create rules that protect internet freedom, while being aware that there may be dangers involved.

Noteworthy public discussions

The period starting from April of 2019, when the new government took office, has brought about several challenges to freedom of expression as well as to media freedom. For example, there have been various attacks on the Estonian Public Broadcasting (ERR), the existence of which is an important part of an independent media landscape in European states based on the rule of law, and that has also been the case in Estonia. In June of 2019 the Minister of the Interior came up with the idea to partially privatise ERR in order to save money.[19] In June of 2019 the deputy leader of the Conservative People’s Party and the representative of the party (the later Minister of Economic Affairs) expressed that “biased” journalists at ERR should be punished and taken off air.[20]

In the period under review a lot of attention has been on the leaving of well-known journalists from various media publications, allegedly because of political pressure. In April of 2019 Vilja Kiisler left Postimees after the editor-in-chief expressed disagreement with her article on EKRE. In the same month Ahto Lobjakas who had been a long-time anchor-man at ERR’s Raadio 2 announced that he was given a choice between self-censorship and leaving, as his criticism of the government coalition had been too severe.

In the current period there have also been emotional and sharp debates on socially controversial topics (such as the Registered Partnership Act and refugees), especially in internet commentaries, which draw attention to possible negative consequences of freedom of expression. Even though several media publications have created systems for taking down unsuitable comments and attempt to improve the culture of communication, it is still often insufficient.

Freedom of expression also means the freedom to express negative information and to some extent the kind of information that divides society if it does not cross the line and turn into incitement of hatred and violence. We have mentioned this in earlier reports, that freedom of expression works if it is possible to publish and discuss all kinds of views. Unfortunately, the lacking culture of communication, which in Estonia can be seen on social media, means that people may avoid the public role. Unfortunately, there is no foreseeable progress in this field.

Trends

The statements of government parties that go against human rights and ignoring of various human rights have created a worrying situation, which is to some extent analogous to what can be seen in such countries as Hungary and Poland, where gradual erosion of the state based on rule of law has taken place. This has been particularly successful in Hungary, where there is no independent media and where, unlike in Estonia, the foreign media is consumed to a small extent.[21]This far there has been a rather lively debate in Estonia. The civil society has mobilised and organised several protests for human rights, which the media has adequately covered.

Recommendations

  • We repeat the earlier recommendation to review acts associated with hate speech and to adopt the necessary amendments.
  • Members of the government should publicly support freedom of expression and free media as vital components of the state based on rule of law, regardless of whether media publications support their political views or not.

Case description

The most interesting cases in freedom of expression in this period have been associated with the alleged political pressure of journalists and attempts to make them use self-censorship in criticism against government. More well-known examples of this are the aforementioned Vilja Kiisler and Ahto Lobjakas instances. Self-censorship is always difficult to evaluate objectively, as those applying political pressure do not usually admit it, but bring up other reasons why journalists leave or are removed. At the same time, it is hard to know why and to what extent the journalist feels the pressure and how justified their fears are. But this does not mean the danger of self-censorship should not be drawn attention to as it a very important factor in making the media landscape less open.

Both Vilja Kiisler and Ahto Lobjakas cases have several characteristics typical to self-censorship. Kiisler said she decided to leave Postimees as he and the editor-in-chief had fundamentally differing understanding of journalistic freedom and freedom of opinion and that it became apparent especially in connection to her opinion pieces that were critical of EKRE. The editor-in-chief admitted that there had been differences of opinion, but these had been questions of style and that there had been no pressure.[22]

Ahto Lobjakas has himself emphasised that he was not fired, but given a choice between self-censorship and leaving. He claimed that after forming of the new government he received signals that his criticism of the new coalition was too harsh and that he was trying to unduly influence politics. Lobjakas says that his choice of words was criticised and he was recommended to be less direct. He was also advised to take some time off in the interests of his mental health.[23]

In both cases, as customary in self-censorship, the leaving of journalists can be explained with other circumstances than politically motivated pressure, but at the same time it cannot be proved that there was no such pressure. The positive thing is that both journalists continue their work in other media publications, which indicates that this far the media landscape in Estonia is still relatively free.


[1] RSF. 2019. Editors abandon Estonia’s leading daily because of owner meddling, 02 July 2019.

[2] Estonian Press Council. 2019. Kaebus nr 901. Pressinõukogu otsus 29.05.2019 [Complaint no 901. Press Council’s decision of 29 May 2019].

[3] This is possible due to good language skills. Estonia is one of the states in the world with most foreign language skills. Eurostat. 2019. Foreign language skills statistics.

[4] Pau, A. 2019. Eesti vilistab Brüsseli nõudele kriminaliseerida vihakõne [Estonia whistles at Brussels’ requirement to criminalize hate speech], Postimees, 8 February 2019.

[5] Riigikogu. 2019. Isikuandmete kaitse seadus [Personal Data Protection Act]. State Gazette I, 04.01.2019, 11.

[6] Initially it was advised to use “overwhelming public interest”, but just before it was passed in Riigikogu the government revoked the draft.

[7] Ibid. Paragraph 4. Processing of data for the purpose of academic, artful and literary expression as well as scientific and historic research is allowed on similar conditions by law.

[8] Riigikogu. 2018. Avaliku teabe seaduse muutmise seadus [Act amending the Public Information Act], State Gazette I, 14.11.2018, 1.

[9] Civil Chamber of the Supreme Court 13 March 2019 judgment no 2-17-1026.

[10] Based on the previous Personal Data Protection Act, considering when the disclosure of data in question took place.

[11] Administrative Law Chamber of the Supreme Court 17 October 2018 judgment no 3-15-3228/37.

[12] Ibid. section 18.

[13] Administrative Law Chamber of the Supreme Court 22 May 2018 judgment no 3-15-2079

[14] Official Journal of the European Union. 20 December 2012. Regulation No 1215/2012 of the European Parliament and of the Council.

[15] European Court of Justice. 2017. Case C-194/16 Bolagsupplysningen and Ilsjan.

[16] Estonian Press Council. 2019. Statistics 2008–2018.

[17] Avaliku Sõna Nõukogu. 2019. Statistics 2011–2018.

[18] Freedom Online Coalition.

[19] Raal, K. 2019. Mart Helme: ERRi võiks koomale tõmmata ning selle raha kasutada päästjate ja politseinike palkade tõusuks [Mart Helme: ERR could be made smaller and its money used for pay rise for rescuers and police officers], Delfi, 10 June 2019.

[20] Nael, M., Ellermaa, E. 2019. Martin Helme soovib ERR-i nõukogult “karistamist” [Martin Helme wishes to “punish” ERR supervisory board], ERR, 28.03.2019;  Lomp, L-E., Olup, N-M. 2019. Martin Helme soovib «kallutatud» ajakirjanike eetrist maha võtmist [Martin Helme wishes to take “biased” journalists off air], Postimees, 29 March 2019.

[21] The Economist. 2019. How Victor Orban hollowed out Hungary´s democracy, 29 August 2019.

[22] Krjukov, A. 2019. Vilja Kiisler lahkub Postimehest erimeelsuste tõttu peatoimetajaga [Vilja Kiisler leaves Postimees because of differences with editor-in-chief], ERR, 22 April 2019.

[23] Püss, F. 2019. Ahto Lobjakas: mind ei vallandatud, anti valida enesetsensuuri ja lahkumise vahel [Ahto Lobjakas: I was not fired, I was given a choice between self-censorship and leaving], Delfi, 27 April 2019.


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).
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