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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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