Katrin Nyman Metcalf

Generally the statement that freedom of expression in Estonia is guaranteed by legislation as well in practice is a correct one. There are no significant problems and the situation was no different in 2011. Rather the development was a positive one. Problems in the field of media have much rather to do with a faulty culture of communication that with acts of law or limitations set by authority of the state. In an international comparison Estonia is set as a good example of freedom of expression, especially in electronic media, as availability of internet is guaranteed by law and considered to be a fundamental right.[1]

Freedom of expression is essential as an independent right as well as a prerequisite for carrying out several other freedoms, and a prerequisite for a functioning democracy. Freedom of expression is stated in Article 10 of European Convention on Human Rights (ECHR) and in paragraphs 44–46 of Constitution of Republic of Estonia. This includes the freedom to express one’s opinions and to impart information – whether in written form, verbally, as images or by other means – as well as the right to obtain information. Therefore, freedom of expression includes acts regarding media as well as access to information and data protection. As most fundamental rights, freedom of expression is not absolute, it may be limited in certain circumstances and on certain conditions. Such limitations are permitted in order to protect other rights (for example right to privacy), but also for security considerations. ECHR Article 10 also states that “this article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”.

Acts and institutions regarding freedom of expression and their development

Democratic states that respect freedom of expression do not usually have specific acts regulating print media. Printed publications (books, magazines, newspapers) do not need to be registered nor do they require a license to publish; the number of publications is dictated by market demands. Other limitations to media may stem from defamation in criminal or civil liability, from Data Protection Act or from the Penal Code (concerning incitement to hatred or violence). Such provisions apply to certain statements regardless of how they were made. States based on rule of law generally have a separate regulation for broadcasting, including the procedure for applying for a license along with the relevant board. As broadcasting utilises a limited natural resource (radio frequency), it has to be regulated to a certain extent; moreover, the frequencies only function if they are protected from disruptions.

The legal order regulating Estonian media is based on these particular principles. But as in the rest of the world, the basic principles of media regulation are no longer clear, as the internet and other types of modern technology have blurred the line between broadcasting and other types of media. The current situation, which almost demands separate rules for broadcasting, but not for the internet, is also questionable. The internet has been so rapid and unpredictable in its development that legislation has not caught up with it, which is why the internet has, to a large extent, remained unregulated. This problem is not particular to Estonia, but as the internet and internet media play a great role in Estonia, it has become an important question in Estonia. Several current questions related to media in Estonia, Europe and elsewhere have to do with the meaning of modern technology in the media regulation.

Estonia has a well built and effective system based on self regulation for filing complaints about false information disseminated in the press or for interfering with private life. Complaints may be filed with courts if there has been a violation of law. In other cases, such as in cases of breach of ethics or good practice, the complaints can be filed with Avaliku Sõna Nõukogu or the Estonian Press Council. Complaints about advertisements can be filed with the advertising council that operates under the Consumer Protection Board.

Development of legislation

Incitement of hatred in § 151 of the Penal Code could be pointed out among rules about media stated in an act of law.[2]It was mentioned in the human rights report from the previous year that the provision in its current wording is too narrow, as it requires proof of real danger on the victim’s life or health in order to convict a person. There have been no changes to the wording of this paragraph within a year.

The most important change in media legislation comes in the shape of the Media Services Act that came into force in January of 2011, which replaces the Broadcasting Act.[3] This change is not essential from the point of view of freedom of expression as it has to do with terminology and coordination of procedures about broadcasting with the new European Union media regulations (especially the Audiovisual Media Services Directive 2010/13/EU that came into force 5 May 2010), which was drawn up to address issues of new technology. The principles which will be the basis for licensing of broadcasting corporations and other essential principles will generally remain the same. The new act will make the system of broadcasting licensing simpler and more flexible, which in turn has a positive effect on diversity of media. Rules on protection of minors were also renewed. The term “media services” that is used in the name of the act is in accordance with the modern terminology in use in European Union and includes several different kinds of technology, not just the traditional broadcasting.

Media Services Act does not regulate print media or the media broadcast via the internet that is not comparable to television. This means that the current act does not regulate web blogs, websites, etc. As the aforementioned EU directive, the Media Services Act extends to the internet only via services of television and on-demand television-like services and radio broadcasting, if they use internet to broadcast themselves.

Several changes in the field of media are connected to the new technologies. Not only in Estonia, but also elsewhere, the rapid development of electronic media makes it impossible for legislation and regulations to keep up and the old, to an extent no longer applicable rules, are being applied in already altered circumstances. This may also result in a threat to freedom of expression; for example, if control over content disseminated on the internet is demanded in order to protect intellectual property. It is appropriate to mention the Anti-Counterfeiting Trade Agreement (ACTA), which had the purpose of creating a global legal framework for protection of intellectual property rights and for combating against commerce in pirated goods. It has been claimed in the debate that ACTA may interfere with inviolability of private life.[4] In practice the planned system means a wide responsibility for the internet service provider, particularly that the internet service provider is obliged to control internet traffic. The status of the agreement is not yet known, as the European Union and its Member States have until March of 2013 to sign it.

The so-called Source Protection Act received a lot of attention in media in 2010, and was discussed at length in the previous human rights report. The act came into force 31 December 2010. The media did not discuss this act much in 2011, and on the occasions it did come up, it was rather agreed that the coming into force of the so-called Source Protection Act did not bring about any dramatic changes. Sulev Vaher, chairman of Estonian Press Council claimed in the beginning of 2012 that one might agree with the statement of the President of Republic of Estonia upon announcing the act that it would not create problems.[5] On the other hand, Vaher also mentioned that it is too early to give a final appraisal.

Court practice

There have been no significant court cases in the field of freedom of expression within 2011. Neither were there any cases against Estonia in European Court of Human Rights (ECtHR) that related to freedom of expression. The ECtHR judgment in the case of Delfi v. Estonia, which the court accepted 11 February 2011 is yet to be made.[6]

There is, however, one case that relates to freedom of expression – the Supreme Court judgment on data protection as a basis for limiting freedom of expression.[7] The topic for discussion between AS EMT and the Data Protection Inspectorate was: whether the data subject’s agreement is needed for the purposes of gathering and forwarding data for assessing credit capabilities – whether according to Personal Data Protection Act § 11(7)2) the forwarding of data damages the justified rights of the data subject excessively or not?

First, the Supreme Court established that disclosure of data is made to an unspecified circle of people or in other words the public, since forwarding of data means making the data available to a specified circle of people and that forwarding requires fulfilment of certain prerequisites. Supreme Court disagreed with the circuit court’s position that forwarding of data presupposes, in addition to the conditions stated, the agreement of the data subject. It was found, while referring to the Court of Justice of European Union that if processing of data is in accordance with the data protection directive’s exhaustive and restrictive list of cases when processing of a person’s data is lawful and with the provisions of Personal Data Protection Act, there is no room for additional requirements (such as the person’s agreement).

The court referred to its earlier practice, which emphasises that “Estonia’s acts of law should be interpreted as much as possible in consideration with the wording and purpose of European Union law. In case of a conflict between national and European Union law the national law ought to be preferably interpreted as much in concordance with the European Union law as possible.” The court stated that the rules contain discretion for assessing the extent of breach of rights of the data subject or that the circumstances of each individual case must be taken into account. The importance of rights stemming from Articles 7 and 8 of the Charter of Fundamental Rights of the European Union has to be taken into account while exercising discretion. The court judgment has thereby once more emphasised the importance of data protection as well as the fact that legislation and court practice of the European Union have to be considered in applying Estonian laws.

As mentioned, the self regulation of media in Estonia is executed via the Estonian Press Council. The number of application processed at the Estonian Press Council in 2011 was the highest in the last ten years. Sulev Valner, the chairman of the Press Council believes it refers to the good quality of self regulation of the press and persons’ increased awareness rather than great problems with media.[8] The Press Council accepted 67 complaints and made 61 decisions. The figures in 2010 were respectively 42 and 34, a year before that 54 and 31. In 2011, 33 of the decisions were guilty and 28 were acquittals. The portion of guilty decisions had been greater in two previous years. The number of settlements at earlier point or revoked complaints remained at a relatively similar level (respectively 3 and 6).[9]

Public discussions

The public discussion about problems in the field of media has touched upon the inability of the institutions to take criticism, in addition to the faulty culture of communication and discussion. It is often brought up in the discussion that that the press is too superficial and entertainment-oriented. These topics are not new; neither did much change in 2011. It has perhaps been mentioned more than before that people who would be interesting to hear from increasingly avoid getting involved in public discussions due to the faulty culture of discussion.[10] As for the internet comments, where the faulty culture of discussion is particularly apparent, the discussion on how to improve the situation is still ongoing. The forums are attempting to apply standards, but have so far been unsuccessful.

Other media related events worth mentioning in Estonia was the digitization of television in 2010. Estonia was one of the first in Estonia to do this. It was generally a success. As cable and internet television make up a rather large part in Estonia (and those consumers do not need to take any steps themselves), the smaller portion of viewers had to get new devices themselves. On the other hand, the population of rural areas and villages who find it hard to adapt to changes for various reasons, was predominantly the demographic that had to provide new devices themselves. There has been the need to reconfigure the installation of the devices on several occasions due to changes of frequencies. Even though it is a technical matter, it plays and important part from the point of view of freedom of expression, as the digitization poses the danger that it reduces access to broadcasting, particularly among the population that rely on broadcasting for participation in society and for receiving information. An interpellation was made in Riigikogu in the beginning of 2011 about digitization and the disappearance of some private television channels from free distribution.[11] Generally, the opinion on digitization has been split, but it is a global process and there have been no specific problems in Estonia with freedom of expression or access to information.

Another topic to cause a wide-spread debate was the use of tax payers’ money to create a television channel for Tallinn City Government. Protest movements against creation of the channel and for using the money for another purpose were formed. It is a justified question in a society with free media whether the state or the local government should create television channels. Even though it is their obligation to impart information to the citizens, there are other ways to do this which cost less. It must also be kept in mind that if such channels are created they must never have the objective of political propaganda.

Statements of the Minister of Culture about the kinds of books the public libraries should loan gained the public attention in autumn of 2011. Even though it is a question of funding, rather than banning certain kinds of books, it still created a wide-spread debate about whether the Minister of Culture is trying his hand at censorship and prescribing what the people may or may not read. This cannot be considered a limitation on freedom of expression, but the debate also posed that question from the point of view of freedom of expression.

Trends

The particularity of Estonia is accessing information to a large extent through the internet and a lot of use through X-tee. Experience of Estonia in this is still an example for the rest of the world. Even though there have been cases of illegal access to information and authorities have had problems with data protection due to carelessness or for other reasons, these problems have been rare considering the volume of use of electronic information. There are less problems each year and no remarkable problems arose in 2011. It is also important that access to information is not just theoretical, but also practical. As different groups of citizens have different opportunities, it is important for the state to guarantee as diverse options for accessing information as possible. This may for example mean guaranteeing access to the internet in a public place or individual assistance with using internet or receiving certain services in some other way.

One problem in the field of media in Estonia that has not improved in the past year is that the media in Estonian and Russian language still has a different content to a large extent. Moreover, the Russian speaking population, to a large extent, follows Russian media, which means that there is a considerable gap between Estonian and Russian speaking population and that different media spheres are being followed. Therefore the messages from the Government and other such information does not always reach Russian speaking population in the right form. This situation cannot be altered with acts of law, nor should this be attempted. The change should come about through information and other “soft” measures. However, there has been no change in this in the past year.

Recommendations

  • Amend § 151 of the Penal Code in order to combat incitement of hatred more efficiently.

 



[1] OSCE Representative on Freedom of the Media. Freedom of Expression on the Internet(2010), p 11. Available at: http://www.osce.org/fom/80723.

[2] RT I 2001, 61, 364.

[3] RT I 06.01.2011.

[4]Alas, Askur (2011). „Võltsimisvastane seadus ähvardab vaba internetti“ [Anti-counterfeiting law a threat to free internet]. Eesti Ekspress. Available at: http://www.ekspress.ee/news/paevauudised/eestiuudised/voltsimisvastane-seadus-ahvardab-vaba-internetti.d?id=63700358.

[5] Delfi (2012). „Valner: allikakaitseseadus pole seni midagi dramaatilist kaasa toonud“ [Valner: Source Protection Act has not yielded dramatic results yet]. Available at: http://www.delfi.ee/news/paevauudised/eesti/valner-allikakaitseseadus-pole-seni-midagi-dramaatilist-kaasa-toonud.d?id=63720270.

[6] 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.

[7] Administrative Law Chamber of the Supreme Court judgment of 12 December 2011. Application no. 3-3-1-70-11.

[8] Judgment no. 3-3-1-70-11. 5.

[9] Estonian Press Council (2011). Statistika 2006–2011 (seisuga 31.12.2011) [Statistics for 2006–2011. As of 31.12.2011]. Available at: http://www.eall.ee/pressinoukogu/statistika.html.

[10] For example Madise, Ülle (2011). “Eesti 1991. – 2011. aastani läbi põhiseaduse prisma. Mõned mõtted.” [Estonia 1991–2011 through the prism of Constitution. Some thoughts.] Available at: http://www.ngo.ee/ngo/8/article/1828.

[11] 11th Riigikogu shorthand notes for the 9th session. 7.02.2011. Available at: http://www.riigikogu.ee/?op=steno&stcommand=stenogramm&pkpkaupa=1&date=1297090958&paevakord=8000.

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