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Home arrow newsitems arrow UN Free Speech Rapporteur David Kaye to EuroFora: Face Risks in Draft Bills versus Radicalism, Hate+

UN Free Speech Rapporteur David Kaye to EuroFora: Face Risks in Draft Bills versus Radicalism, Hate+

Written by ACM
Tuesday, 13 October 2015

*Strasbourg/CoE/Angelo Marcopolo/- UNO's Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Dr. David Kaye, in a Topical Interview with "Eurofora", practicaly endorsed Journalists' Concerns about various current Attempts to Regulate so-called "Radicalism" or "Hate Speech", etc., and stressed the Need to Draw the Line for Free Speech on Media, etc. by Focusing mainly on whether any "Incitment to Violence" might, eventualy, exist, or not, in such cases, so as to Prevent real Risks to Exclude "Political Opponents" who simply have anOther View, even if it may appear Shocking to some, whose Free Expression might even be Necessary for Public Debates on Issues of General Interest for any Democratic Society.

                  + A Key Part of his Statements were afterwards Supported also by the European Federation of Journalists' Secretary General, Ricardo Gutierrez, at another Inteview with "EuroFora", (See Infra)

    California University Professor Kaye was Invited by the PanEuropean CoE in Strasbourg this week at an International Conference  about Freedom of Expression as "a PreCondition for Democracy", (Comp. also other "EuroFora" NewsReports from that event), attended by more than 300 participants from various relevant European and/or International Organisations, Legal Experts and/or Judges, Free Speech NGOs, Press Associations, Journalists, etc., during Two Days,  October 13 and 14, 2015.

    This was done in order to give an opportunity to UNO's Rapporteur, who is also an American Citizen, to actively participate as a Keynote Speaker in 2 Different, but both Topical COE's Debates : - Earlier Today on "How to Create an Enabling Environment" for "Free and Pluralistic Debate", and Tomorrow Morning, on the "Implications" and "Costs" of "Mass Surveillance" even in this area.



    - Meanwhile, Earlier Today, the Secretary General of the European Association of Journalists, Ricardo Gutierrez, an Experienced former long-time Journalist himself in Brussels, (See EFJ Chief's INTW to "EuroFora" in another, Differend NewsReport, at : .....), had launched a Vibrant Appeal to the CoE's PanEuropean Conference particpants, to Urgently face the "Concerns" that "the Community of Journalists" currently feels, particulary about various recent attempts to Prepare the Adoption of several Draft Bills in order to "Regulate" mainly so-called "Radicalism",  or even "Terrorism" propaganda, (etc) in Public Discourse.

    - He repeatedly Denounced, in this regard, f.ex. the Fact that, after the Jan. 2015 Massacre of Critical Journalists at "Charlie Hebdo" and even Jewish Civilian People elsewhere in Paris, despite many Strong, Popular Calls to Defend Freedom of Expression, nevertheless, certain "Websites were Blocked, without any authorization by an independent Judge", i.e. a Fact which provokes a Dangerous Precedent for the Future.



    + Moreover, previously, even "Charlie Hebdo"s own Lawyer, Richard Malka; had also passionately Called upon Strasbourg's PanEuropean Organisation for Human Rights, Democracy and Rule of Law, "Not to withdraw from us (Media, etc) these Rights" which currently allow, as he said, even "Blasphema" by strongly Criticizing any Religion, and/or, f.ex., "the Right to be IslamoPhobe", etc., i.e. "that Liberty to Shock", sometimes, those who hold Differend Views, at least as long as such Critics' Attacks aim only to Criticize certain Ideas, Religions or Theories, etc. but "without Targetting any Person, Neither Seeking to Harm anyone" :  "Otherwise, it wll be Fanatism" who will Impose itself and Dictate, in practice, what People could Say, or not, Malka warned.

     - "F.ex. Houellebecq, even Declared that, in his view, "Islam is Stupid" (sic !), and he was Aquitted" in Court proceedings brought against him, Lawyer Malka pointed out in this regard, referring to an atypical but famous French Writer, to whom was Dedicated the FrontPage of "Charlie Hebdo"'s weekly Edition Published on January 7, 2015, i.e. exactly the Day of the notorious Bloody Massacre of its main Team by Armed Islamist Terrorists linked to ISIL, a few Hours later in Paris, while, Curiously, that precise Paper did Not at all refer to, and didn't even mention, neither Moameth, nor any Muslim, not even the Word "Islam", anywhere in its Headlines, but, on the Contrary, Only Attacked against ...the Christian Religion, and contained 2 Articles and 2 Photos at its FrontPage obviously aimed at Criticizing the current French President Hollande, some of his pals' "Socialist" Policies and even alleged Personal views on certain, very Topical then,  issues, (See explicit  Photo of the Original of that Historic "Charlie Hebdo" Edition, herewith)...


    ++ In fact, as even CoE's Secretary General, Thornbjorn Jagland, had himself Warned already Today Morning, in Conclusion of his Opening Address to the Conference, Today, there is a "Need" to "Defend Freedom of Expression on the Internet".

    In particular, CoE Member States' Governments must Not "play .. into the Hands of Terrorists who wish to Hurt us and Destroy Democratic Life", f.ex. by adopting  some "DisProportionate Responses", as "we are seing Worrying Attempts to Block and Filter Internet content, in a number of States, in Old Democracies, as well as New", and "Increased Surveillance Powers for Security Services, in order to Monitor Personal Emails and Social Networking", which is "not only a Problem for Privacy", but it may also have "a Chilling Effect on Free Speech", as CoE's Chief Denounced.

    "Fearing ... that this is Heading for a place that is Messy, Confused, and Bad for Human Rights", Jagland "Urged" the 300 Participants in the Conference to "Think .. How we can Move Forward Together, in order to Uphold Human Rights and the Rule of Law OnLine". For that purpose, we should "Reject the False Choice between Liberty and Security", because "we Need Both !". Therefore, we have to "Decide where, we, as Democratic Societies, Draw the Line, between Free Speech, and Incitment to Hatred and Violence"  : A "Decision" which must be "Based on...the European Convention of Human Rights", and "make it our shared Mission to Defend Freedom of Expression OnLine", CoE's Chief concluded.

    That's why, Jagland has just "commisioned a Comprehensive, Pan-European Evaluation, which will show us, exactly, what is going on Accrosss (CoE's 47) Member States", "the Trends and the Challenges", and due to be prepared "by the Swiss Institute of Comparative Law", in order to be "Published as Early in 2016 as possible".


    => - Questioned by "EuroFora" if, also himself, Felt "Concerned" by various such Draft Bills currently prepared and aiming to Regulate so-called "Radicalism", etc, UNO's Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression, Dr. David Kaya, was Positive :

      - "We Need to be a bit" Concerned "about Anyone who drives such a Line, because when you Start to Draw a Line around "Extremist" Speech, you Risk covering a lot of speech that is Legitimate", but simply Critical, Professor Kaye replied to our Question from the outset.

    - Particularly "if it falls to the Hands of People who are very Eager to Restrict Speech, that we may deem "Extremist", while, in fact, it might just be about Restricting Opponents in a Political Arena !", he Warned.

     - "And we See that a lot ! We see that all the time !", UNO's Rapporteur Denounced.

    -  "It's Differend from Sport", because "on Sport, you might say Legitimately : We are going to Restrict Speech on the pitch, in which you are saying Hate Speech to the Other Side : Because it's a Game, and we want to maintain a level of Stability".  

    >>> - "But, Life is Not Sport ! In Life and Politics it's (mainly) about Keeping an Open Space for Public, Democratic Debate", Dr. David Kaye stressed, as a matter of Principle.

     - "Unless we are talking about Incitment to Violence" : Indeed, here, "you only Restrict Speech when it amounts to Incitment to Violence", he specified.

    - "This should be the Core" of that all, UNO's Rapporteur underlined on that Key point.

    - On the Contrary, "for any Other Kind of Speech, we should Face it with Education, More Speech", etc, f.ex. "when it's Against Traditional ways of Thinking, about a Hostile Environment," etc., (I.e. almost like some aspects of a CoE Project for Young People against "Hate Speech", partly due to Reply with Sound and Convincing Arguments in Public Fora).

    + However, "there are also Other Grounds to Restrict Speech, as, f.ex. National Security, etc. But, even there, we Need to be really Conscious, and Only adopt really, really Narrow Restrictions, when it's Crystal Clear that the Restriction is Designed to Meet a Real Threat, that is Concrete, and that the Government can Identify", Kaye explained.

    - "If you caN't do that, then, I think, that you do Risk going Down a Slipery Slope, or just Risking Abuse, and (unfortunately) we see Abuse Too Often...", UNO's Rapporteur Warned, in Conclusion of his Reply to "EuroFora"s Question.


+ EFJ Support :


    +Moreover,  European federation of Journalists' Secretary General, Ricardo Gutierrez, in susbequent statements to "EuroFora", supported the main thrust of UNO's Rapporteur's views :

    - "One of the Biggest Problems for a Journalist (particularly working on News) is that there is Less and Less Protection from the (CoE's Member) States, from the Governments", he warned.

    + Moreover, "Sometimes they are adopting Contradictory Legislation : F.ex. on Protection of Journalists' Sources, and, at the Same Moment, they (States) vote Legislation on Mass Surveillance", he Denounced. Because, "when you have Mass Surveillance", then, "of course, Protection of Sources is Nonsense", (i.e. practicaly Nullified, Non-Existent).

    - Therefore, "what we (CoE's Freedom of Expression/Democracy International Conference participants, from main Press Freedom Actors accross Europe and all the World) are for More Protection for Journalists, because Journalists are Vital for Democracy, we Need Journalism in order to Ensure Democracy", he stressed, in line with ECHR's (but also IACHR : See Infra) well Established case-law.

    - Indeed, "We Feel that the Profession (of Journalism) has Less protection currently, and, therefore,  "we Ask Governments for More Protection", Ricardo Gutierrez concluded on this point.

    - Questioned by "EuroFora" about "Concrete Examples" illustrating that issue, EFJ's Head pointed to the Fact that : - Nowadays, "F.ex., more and more Governments are taking Legislation to Counter Terrorism". But, "the Problem is that Some Governments, Today, are MisUsing those Legislations",  inter alia, also "to Impeach (Impead) Journalists, Hindering them to do their work : That's the case in Turkey", he pointed out.

    - Even if, since several Years ago, we have ...Journalists in Prison in Turkey, based on (Controversial, i.e. often Criticized by the CoE and/or EU as Anti-Democratic and Illegal) <<Anti-Terrorist>> Legislation". F.ex. "Most of the Journalists working for Kurdish Media, in South-Eastern Turkey, were in Prison. Today, we have still 21 Journalists in Prison in Turkey, and, a lot of them, Based on <<Anti-Terrorism>> Legislation.

    >>> - "That's One of the Problems : The MisUse of  some Legislations adopted for Other Purposes", the Experienced Head of the PanEuropean Federation of Journalists denounced.

    + When "EuroFora" reminded that, Moreover, a Collegue from Turkey (speaking on behalf of an "Independent Press" NGO), hasjust Denounced, here, at the CoE, in Strasbourg, what he called .. "Open Prisons", pointing at "Media under Censorship, and even Self-Censorship", because of the Fear and Threats provoked by an Anti-Democratic Legislation and/or Practice by Ankara's Authorities, EFJ's Secretary General was also positive :

    + "That's the Other Point : When you are" Threatened by such kind of things, which, in real Practice, sometimes can be "even More Important !", he Denounced.

- "That's why we must Ensure a Global Safety for Journalists. Because,  one of those Chilling Effects of those Imprisonments, Harassments", particularly "Judicial Harassment, is the Fact that Most of the Journalists are doing Self-Censorship : So, it's a way to have an Impact on Press Freedom, without showing it ! So, it Seems that everything is OK, But, in Fact, Journalists are Not Playing their Role, as a Social Actor Ensuring the Transparency of Democracy", he rightfuly Denounced.

    + Moreover, Invited by "EuroFora" to Develop and Clarify further a Key Observation that he had made during an earlier CoE's Debate, about some reportedly Dangerous Draft Bills against "Radicalism", etc., EFJ's Head pointed at certain Basic Facts :

    + You can see that in various cases, including even France, China, Turkey, etc., he replied. -"When there were the Attacks on "Charlie Hebdo", everybody was for "Press Freedom", "Freedom of Expression", etc.  But, "one of the First Decisions taken by the Government afterwards, was to Ban some Websites", accused to be "so-called <<Radical>> Websites, without any Judge's Contradictory Decision : Just an Administrative Decision, taken by a Minister of Interior" only. - "That's Not Fair. That's Not the way to Dea with Press Freedom, with Freedom of Expression" , Gutierrez criticized, as a matter of General Principle.

    In this regard, reference was made by "EuroFora" also to "Chrarlie Hebdo's Lawyer, Richard Malka, who had earlier launched a Call at the CoE, "Not to Deprive us (Media) of the Possibility even to Schock, on the Condition that there will be No Aggression against one or more Individual Persons or Social Groups.

    - "There are always Limits, or course". But "Sometimes, when People are Reacting, with Emotional reactions, it's very Often Bad". Instead of that, "we should Think about the Effect, the Impact of Political Decisions", he advised.


    + Meanwhile, a quite Similar Orientation, around the Basic Distinction of whether a given Speech aims to Harm one or more Persons by provoking Physical Violence against them, or not, seems to be Supported also by the Experienced former ECHR vice-President Francoise Tulkens, who was the Keynote Speaker Today in a Long Debate about the Freedom "to Offend, Shock, or Disturb", as ECHR's well-known case law frequently notes about Freedom of Expression's Scope, and "Hate Speech", if not even openly Racist or Terrorist Propaganda, according to a Formula which "EuroFora"s co-Founder had initialy seen only in ...Turkish Government's usual Pretexts for Prosecuting various Political Dissidents, a long-time ago, before having the Strange Feeling to find it, much Later-on, even among several ECHR's Rulings, (sometimes Controversial)...

    President Tulkens (who has also been very much involved in CoE's Steering Committee on Media, etc), herself acknowledged that, indeed, at some moments in the recent Past, she had personaly wondered whether at least some among ECHR's subsequent Rulings might, or not, have given Food for Thought to Critics, and/or leave a partly Obscure Distinction between what was really allowed, and what was Legitimately and clearly prohibited in Freedom of Speech issues : If I had another opportunity to do so, I would have really Changed at least the way to present that Distinction better, she criticaly observed in substance, before Noting that, Fortunately, meanwhile, the ECHR itself had, more Recently, started anew to Positively Clarify things. But she admitted that, in fact, that Crucial Matter Needs to be, Today, even more Carefuly scrutinized and resolved in a really efficient and satisfactory way for such an important Human Right, at the base of any Democratic Society..      


    + By a Timely Coincidence, Dr Kaye's  New Global Report on Freedom of Expression Worldwide, has "Just been Posted .. Today on-line", including at his own personal "Twitter" account, (as "UN Report"), in order to be Debated "for Next Thursday at New York, in UN's General Assembly", he told "EuroFora".

    However, he declined, carefuly, to pronounce himself on a Sharp Controversy which had re-Started, meanwhile, among Participants also at this CoE's Conference, Earlier Today, about the Effect on Freedom of Expression on-line that may have CoE's Treaty against "CyberCrime", (also known as "Budapest Treaty"), simply because, even if , indeed, "It's Global on Geography, and it's Global in its Subject Matter" (CyberCrime), but "I need some Time to examine that",

    Living with his Family in California, (where he "Wishes to be Always"), but coming from Ohio, America's Heartland, while being a son of Eastern European Migrants from areas which are nowadays "Ukraine, Lithuania, Poland", etc, i.e. almost another, then European Heartland in an Historic Past, (which was once, at least partly United, and even Defended European Culture, Civilisation and basic Freedoms, by daring to Face succesfuly the Military Attacks of former Ottoman-Turc Empire, until Ukraine was Liberated, also with the Help of Russia mainly at its Eastern Regions), but loves to read a classic Polish Poet, (naturally Translated in good English), as he told "EuroFora"...



("DraftNews", as already sent to "EuroFora" Subscribers/Donors, earlier. A more accurate, full Final Version, might be published asap).


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The official presentation of a "Program" respecting People's choices voted in the June 7, 2009 EU Elections, to be debated in EU Council and EU Parliament during its 1st Session on July in Strasbourg, is the No 1 Priority, according to Democratic principles, for the Franco-German axis, said the main winners at the ballot box, French President Nicolas Sarkozy and German Chancellor Angie Merkel.

They stressed  that the New EU Commission's President must have a "Program" in favor of an EU which "protects" its Citizens, regulates financial markets and aims at a "Political" Europe" : a wording they have used as incompatible with Turkey's controversial EU bid.

They also declared ready for a "political" endorsment of "Mr. Barroso's candidacy" in June's EU Council, considering that an official decision would have to be made after EU Parliament's debates and votes, possibly from next month (July), with the legally necessary final acceptance shortly after Lisbon Treaty's entry into force, hoped for September or October.

- "A Program, and Mr. Barroso" : This resumes, in substance, the anouncements made by Sarkozy and Merkel, on the question of current EU Commission's President, Barroso's declared wish to succeed to himself for a second mandate, to be extended during the following 5 years.

 In their 1st meeting after EU Elections, they observed that "the Franco-German axis counted in European Elections' campaign... But, we both keep a realistic view : We saw the number of those who abstained, and we must absolutely give them an answer. We also see the disilusionment of an important number of Europeans vis a vis Europe, and we are aware of the responsibilities we have".


 - The "Duty" of the new EU Commission's President, after June 7, 2009 EU Elections' result, "is to act for a Europe which protects the Europeans, to commit himself into working for a better Regulation of Financial transactions, ... and to have a Political will for Europe", underlined Sarkozy.

Therefore, "we have asked M. Barroso... to clarify, to officialy present the intentions he has", he anounced.

- "We want to speak also about the Programme", explained Merkel.

- "It's important that for the next EU Parliament's mandate (2009-2014) we take the right Decisions for Europe.  Obviously on Persons, but mainly Decisions on Issues", she stressed.

- "It's not simply a question of a Person, it's also a question of a Programme". We are "really asking Mr. Barroso to commit himself on a Program, and on Principles, on Values", Sarkozy added.

EU President-in-office, Czech Prime Minister Jan Fischer, accepted the Franco-German stance :

- "Barroso must present his Programme. The Czech Presidency agrees with that", Fischer reportedly said later, after meeting Sarkozy.

But Press reports from Brussels claimed that Barroso had preferred to be officially appointed by EU Council since June, (i.e. next week), "because this was implied by the current Treaty of Nice, according to him", and considered any delay until the possible ratification of the new, Lisbon Treaty on September/October, as "undemocratic".

- "At any case, independently of what Germany and France ask, it's also EU Parliament's wish". "We shall propose Mr Barroso's candidacy... But even in the framework of Nice Treaty, EU Parliament has to be associated in this Decision", the French President observed.

If this is correctly done, then "we support Mr. Barroso's candidature", and "if the (EU) Parliament agrees, we might ratify this decision since July", (i.e. next month), they both said.


- "France and Germany support Baroso's candidacy, But we want to speak also on the Program. We believe that this Program should be established in close cooperation with EU Parliament, and that's why we have followed an appropriate way", said Merkel.  - If EU Parliament wants, this election can take place on July,  but this must be done in full agreement.

- "We shall support Mr. Barroso's candidacy, without doubt", said Sarkozy. "But we have asked from Mr. Barroso, as I told him yesterday, to put into detail.. his intentions, at the eve of his 2nd mandate, if the situation avails itself.

    France and Germany "don't want to take an Official Legal Decision by writting" during "the next (EU) Council" (on June 18-19), declared Sarkozy.  Because they prefer, at this stage, only "a Political decision" on June, "so that we (EU Council) can work together with EU Parliament", which starts to meet only Next Month, since July in Srasbourg, "leaving a Legal decision by writting for later".

    - "If the Conditions are fuillfiled in EU Parliament, we (EU Council) are ready to give the agreement and make it offficial", said Merkel

    - "But, now we are working in the base of Nice Treaty. If tommorow we want to work in the spirit of Lisbon Treaty, we have to find a proper way", she added.

    - "Of course it's Legally complicated, because we are going to make a Political proposal to the forthcoming Council, for an EU Commission's President, on the basis of Nice Treaty : So, we (EU Council) will not appoint the Commissioners. Only the President.  If EU Parliament agrees, it could endorse this position on July", explained Sarkozy.

    But, on Autumn, "if Ireland ratifies Lisbon Treaty, there will be, at any case, a 2nd Decision, to appoint the Commission's President, this time on the basis of Lisbon treaty, and then, we, the EU Member States, would have to appoint (also) the EU Commissioners", he added.

    As for the precise Timing :  - "Everything is suspended until the Irish vote... Now, we must all make everything possible to help Ireland to say "Yes"" to Lisbon Treaty... The Irish Referendum, ..will take place either on September or on October. It's a Question which depends on the Irish. And,  then, we shall have the Choice of the Candidates for the permanent Institutions of Europe".

    However, "if Ireland says No, we, French and Germans, have to assume our responsibilities, and we'll do so", he concluded.

    But British and Swedish governments were reportedly eager to have a final EU Council decision on Barroso since this month, on June's European Council. While the other EU Member Countries are divided, several of them preferring to wait until EU Parliament pronounces itself, on July, and/or until Lisbon Treaty might be ratified by Ireland at the beginning of the Autumn. Barroso's current mandate ends on November.

    There are also various, contradictory and/or unpredictable reactions inside EU Parliament vis a vis Barroso's wish to continue a 2nd mandate, because many MEPs are openly or secretly opposed, reluctant, or hesitating.

    In the biggest EU Countries, as France and Germany, EU Citizens voted on June 2009 EU Elections for a renovated, non-technocratic but Political Europe which cares for its Citizens, with an Identity, Values and Borders, declared incompatible with Turkey's controversial EU bid, by mainstream, pro-European Governing Parties. Similar choices were also supported in several other small or medium EU Countries.

    On the contrary, whenever, in other Countries, Governing and other mainstream Parties didn't make these choices or eluded them, EU Citizens massively voted for euro-Sceptics whenever they were the only ones to to promise anti-bureacratic change and oppose Turkey's demand to enter into the EU, (f.ex. in the UK, Netherlands, etc).

    It's seems to be an Open Question whether Sarkozy and Merkel's conditions will be really accepted by Barroso, who was appointed on 2004 in a different political context, (with Socialist Prime Ministers in Germany, France, etc), had rejected in the Past the idea of EU becoming "equal to the USA" as "ridiculous", and pushed for Turkey's contoversial EU bid, trying to "soften" or contain the changes desired by the People who voted for Merkel and Sarkozy with another policy vis a vis Turkey on 2005 in Germany and on 2007 in France, as they did all over Europe on 2009.

    In addition to many EPP Governments, it's 3 remaining Socialist Prime Ministers : Gordon Brown in the UK, Zapatero in Spain, and Socrates in Prortugal, who support Barroso, as well as Liberal Swedish Prime Minister Reinfeldt. But their Parties lost the June 2009 EU Elections.

    Questioned whether there was still "Time" for "other" possible "Candidates", Sarkozy and Merkel did not deny, nor made any comment on that, but simply said that "it's not for us to make publicity for any candidates. We anounced our choice ("A Program, and Mr. Barroso"). But we respect any other candidate".

    Among various other names cited are former Belgian Prime Minister Verhofstadt, former UNO's Human Rights Commissioner Mary Robinson of Ireland, Italian former EU Commission's vice-President Monti, etc. Meanwhile, Luxembourg's PM Juncker, (who had been unanimously accepted by EU Council for EU Commission's Presidency on 2004, but refused), announced his intention to resign from "EuroGroup"'s Chair. Thus, he might be available for another Top EU job.

    As "EuroFora"'s "opinion" said (See publication dated 9/6/09) : - "If the current candidates (i.e. Barroso, etc) to the Top EU jobs promise and guarantee to respect People's democratic choices, then, it's OK".

"Otherwise, Europe must find new candidates, really motivated and able to implement these democratic choices of the People."

    Because, "in Democracy, the forthcoming choices for EU's Top Jobs,...should be made according to EU Citizens' Votes in June 7, 2009 European Elections, and main EU Governments' strategic policies".



2009 EU Elections were won by Parties against Technocracy and Turkey's controversial EU bid, while the 1999-2004 Majority Abstention trend decelerated. What should be done in 2009-2014 ?


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