4 - Chapter

Freedom of speech

Author: Katrin Nyman-Metcalf

The situation got worse.

Key issues

  • Threats from politicians against journalists.
  • Complaints of defamation which have been lodged with courts have increased, with unrealistic claims for damages being levelled.
  • The anti-hate law has again been discussed in government, but no concrete progress has been made.
  • In general, the situation regarding freedom of expression in Estonia remains good in terms of an international comparison, despite the deterioration of one particular (unnamed) situation. In terms of internet freedom, Estonia is second in the global rankings.

Political and institutional developments 

Freedom of expression is enshrined in Article 10 of the ‘European Convention for the Protection of Human Rights and Fundamental Freedoms’ (ECHR), and in Articles 44-46 of Estonia’s own constitution. Freedom of expression is important both independently and as a precondition for the exercise of other freedoms and the functioning of democracy. This includes the freedom to express and disseminate ideas and the right to be informed. Freedom of expression is associated with media laws, access to information, and data protection. Freedom of expression may be restricted in certain situations and under certain conditions to protect other rights (such as privacy and related data protection requirements), for security purposes, in order to restrict hate speech, or for other reasons, such as the licensing of broadcasting rights and the regulation of other forms of communication technology.

The situation regarding freedom of speech in Estonia has been notably good since the country regained its independence. The situation has generally remained good throughout this period, although it can be noted as having deteriorated during the period in which the government was in office between April 2019 and January 2021. Concerns remain as certain parties have expressed doubts about various areas, such as, for example, the freedom of the press or the universal nature of human rights. Although legal or other formal restrictions regarding freedom of expression are rare, there is a risk that the situation will worsen due to threats and political interference.

The ‘International Organisation for the Freedom of the Press’, or RSF, notes that 2020 was a difficult year for Estonian journalists. There was an increase in verbal attacks on journalists by politicians, and in cases in which politicians refused to provide information to journalists. Nevertheless, Estonia is in a good overall position in the global view, with the RSF ranking Estonia in fifteenth place out of 180 countries in the global ranking (it held fourteenth place last year).[1] Estonia ranks second in the world in terms of internet freedom.[2]

Legislative developments

In the current period, the more technical side of communications has given rise to some debate. It was proposed that provisions be added to the ‘Electronic Communications Act’ in order to prohibit the use of infrastructure which is considered to be a security risk, something which can euphemistically be referred to as the Huawei ban. The much-criticised bill was not adopted during the reporting period; the ministry concerned is still rewriting it. The ‘Electronic Communications Act’ was amended in 2020 in terms of issues which were related to consumer protection. For example, it allowed restrictions on access to the web interface and clarified the right to request information from various sources such as, for example, providers of communication and information society services. The changes are largely due to the implementation of EU consumer protection rules.

Another unresolved issue concerns conditions for the transmission of national broadcasts via cable operator networks, with the main snag being that the parties involved have not yet agreed on a cost. A draft amendment to the ‘Media Services Act’ is pending. The change would mean the application of the ‘EU Audiovisual Media Services Directive’, such as in terms of regulating video-sharing platforms and social media channels, for example.

At the end of 2020, the ‘Copyright Act’ was amended in regards to what has become known as the ‘empty cassette fee system’ in order to make it more compatible with modern technology (the act entered into force in April 2021).

The debate regarding the criminalisation of hate speech temporarily gained momentum when the new government took office. The previous government had clearly stated that it did not intend to deal with the matter. However, the current government also came to the conclusion that Estonia, unlike most EU members, does not need to criminalise hate speech.[3] The need to criminalise hate speech has primarily arisen in Estonia in connection with European Union Framework Decision 2008/913/JHA regarding combating the manifestations of racism and xenophobia. While political interest in doing something remains low, hostility to sexual minorities, for example, has grown significantly, as noted by the ILGA.[4]

Case law

In recent years the issue of defamation has come to the fore, as evidenced by the increase in the number of lawsuits. The claim for EUR 75,000 by the broadcaster Alari Kivisaar against the person who allegedly slandered him on social media received a great deal of attention. The case has not yet reached a judgement but, in July 2021, Tartu County Court decided not to satisfy Kivisaar’s smaller lawsuit against another person who allegedly insulted him. In August 2021, Harju County Court partially satisfied an action which had been brought by a private individual against a TV presenter, a television station, and a production company, alleging the dissemination of false information which served to infringe an individual’s honour. The applicant had claimed EUR 1 million in damages, but the court awarded EUR 10,000. The decision has not definitively entered into force.[5]

In September 2020, the Estonian Association of Media Companies filed a complaint with the European Commission, flagging what it saw as unhealthy competition in the Estonian media landscape due to the fact that ERR is financed from the state budget, mainly in terms of its online news content production.[6]

During the period under review, the Supreme Court has discussed access to court hearings and closed session files, in which it has generally formulated importance levels both in terms of access to information and clear data protection rules.[7]

Statistics and surveys

In addition to legal acts and the judiciary system as a whole, Estonia has a system which is based upon the process of self-regulation. Complaints can be submitted to the Public Speech Council or the Press Council, as well as to their ethics adviser with Estonian Public Broadcasting. The Press Council operates within the Estonian Association of Media Companies. The organisation, which previously operated under the name of the Estonian Newspaper Association, changed that name in 2019 as both the media and the organisation’s membership have become more diverse. The Press Council agreed its one thousandth decision in December 2020; there have been 437 acquittals and 376 reprimanding decisions, and the rest have been resolved in other ways. The council was set up in 2002 partially due to dissatisfaction in certain media outlets with the work of the Public Speech Council. However, both organisations have continued their work.[8] Complaints are easy to lodge and codes of ethics are readily available. The number of complaints has remained pretty similar in recent years. In 2019, the Press Council received 82 complaints and made 73 decisions (against comparable respective figures of 84 and 81 in 2018). In 2019, a total of 47 acquittals and 26 reprimanding decisions were made, while in 2018, this amounted to 59 acquittals and 22 reprimanding decisions.[9] Statistics for the Public Speech Council were only available on their website until 2018, but the list of decisions shows that fewer decisions were made both in 2020 and in 2021 than in previous years.[10]

Promising practice

A good, well-functioning e-state and a high level of internet freedom can still be included in any description of the type of good practice which is typical of Estonia. The country’s e-government system ensures that access to information remains good, while the use of personal information can be effectively controlled and monitored.[11] When it comes to the context of internet self-regulation, Estonia is also active on a global scale. A good example of a specific measure which has received international attention is that of online police officers, with whose help Estonia is at the forefront of the fight against the worse aspects of the internet.[12]

During the reporting period, the COVID-19 pandemic has affected society in almost every area. The dissemination of reliable information is particularly important in an emergency, and although surveys of people’s attitudes and opinions are still ongoing it seems that, in general, official information was also trusted by non-native speakers. The Russian-speaking population, which otherwise largely consumes Russian media sources, made more use of Estonian-language media sources from Estonia itself during the crisis.

Major public debates

In Estonia, freedom of expression is not unduly restricted by laws or other official decisions, but the deteriorating political culture and the increasing division of society have sometimes resulted in a somewhat tense relationship between the media and politicians. One case is described below, but journalists tend to experience similar, albeit less extreme, situations quite regularly.

We have also mentioned in previous reports the fact that freedom of expression works when it is possible to express and discuss all kinds of points of view. Unfortunately, the frequent lack of communications culture which, in Estonia, can at least be seen on social media, means that people can avoid public roles. Unfortunately, little progress has been made in this area.

Trends and outlook

During the period of office of the previous government, the situation deteriorated not only for the media but also in terms of the general public debate. The polarisation of society increased, debates intensified. Although the change of government served to improve government communications, the sharp, conflicting mood in society has continued.

Social media has brought with it changes and challenges across the world. This is also the case in Estonia. The changes are global. In Estonia, internet freedom is extremely healthy, even more so than media freedom. It also has a positive effect on freedom of expression, although this assessment is a combination of technical, accessibility, and content issues.

Case study

Freedom of expression (and the media) can be restricted in ways which don’t always involve enforcing restrictive laws. In countries in which human rights and freedoms are protected, other ways of restricting freedoms are commonly used. A good example of this is the activities of the then-Minister of Justice in connection with suspicions of corruption by Minister of Education Mailis Reps, which came to light in November 2020 thanks to the investigative journalism of Eesti Ekspress. At a press conference on 19 November 2020, immediately after the suspicions were raised, Minister of Justice Raivo Aeg announced that he had asked the prosecutor’s office to investigate the work of journalists in connection with the investigation of the case, and to discover whether prohibited supervision measures had been used. The Estonian Association of Journalists and other organisations which were involved in dealing with freedom of expression roundly condemned such activities, as they were seen as calling into question the legitimate work of journalists. The Minister of Justice later stated that his contact with the prosecutor’s office was misunderstood and that the work of journalists was justified. The prosecutor’s office did not open an investigation and, a few months after the incident, the government changed and the Minister of Justice resigned. Then the Minister of Education resigned due to the prevailing suspicions of corruption.[13]

Although there were no direct consequences for the minister’s actions in this particular context, such conduct is in any case worrying, if only because one minister considers it appropriate to threaten investigative journalism by applying the penal code.

At the international level, the banning of the Russian channel, Sputnik, from the Estonia airwaves attracted some attention, especially since Estonia – unlike, for example, Latvia and Lithuania – has not previously been involved in banning any Russian media even when such media has exhibited hate speech and false allegations. The government explained Sputnik’s ban, which was realised in terms of EU sanctions, as a direct result of the actions of the owners of the media company, and denied that the decision concerned the content of the media itself.[14]

Recommendations

  • Place the criminalisation of hate speech back on the government’s agenda.
  • Civil society and the public sector should work together to explore how to raise the level of culture of politicians when they have to deal with the media.
  • Develop and take full advantage of e-government processes (such as in terms of access to information, etc), in order to create an open society, while continuing to pay attention to potential threats to online society (eg. through the online police organisation).
  • Pay attention to the non-Estonian-speaking population (which is mainly Russian-speaking) so that no separate information rooms can arise.

[1] RSF. 2021. Estonia – Difficult time.

[2] Freedom House. 2021. Estonia – Internet Freedom.[Eesti – Internetivabadus].

[3] Lauri, M. 2021. Vaenukõne seaduse eelnõu jääb riiulisse, ERR, 23.03.2021.

[4] Vikervaade. 2021. ILGA-Euroopa aastaraport: vihakõne on märkimisväärselt kasvanud, sealhulgas Eestis, 19.02.2021.

[5] ERR. 2021. Businessman awarded defamation damages in TV3 case, 12.08.2021.

[6] Eesti Meediaettevõtete Liit. 2021. Soovime meediaturule ausat konkurentsi!

[7] Riigikohtu kriminaalkolleegimi 16.04.2020. a määrus kohtuasjas 1-19-8262.

[8] Roosve, G. 2020. Imestunud välismaalased ja ootamatud teemad ehk pressinõukogu 1000 otsust, ERR, 02.12.2020.

[9] Eesti Meediaettevõtete Liit. 2020. Pressinõukogu – Statistika 2002–2019.

[10] Avaliku Sõna Nõukogu. 2021. ASN lahendite sisukord.

[11] Riigikohtu halduskolleegiumi 06.01.2021. a otsus kohtuasjas nr 3-19-1207.

[12] PPA. 2021. Veebipolitseinikud.

[13] Council of Europe. 2021. Safety of Journalists Platform.

[14] Ibid.


Author

  • Katrin Merike Nyman Metcalf on kaasatud professor Tallinna Tehnikaülikooli õiguse instituudis, e-Riigi Akadeemia juriidiline ekspert ning töötab rahvusvahelise konsultandina peamiselt kommunikatsiooniõiguse alal, aga ka kosmoseõigusega. Katrin on töötanud rohkem kui 50s eri riigis. Katrinil on PhD Uppsala Ülikoolist.

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