T. Mc Gonagle, Human Rights Centre, University of Essex

I INTRODUCTION

The first of the three OSCE Supplementary Human Dimension Meetings scheduled for 2001 was held in Vienna on 12-13 March. Its theme was 'Freedom of Expression: New and Existing Challenges'. The meeting was organized under the auspices of the Romanian Chairmanship of the OSCE, with the collaboration of the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) and the office of the OSCE Representative on Freedom of the Media.

II STRUCTURE OF THE SUPPLEMENTARY HUMAN DIMENSION MEETING

The format of this meeting differed from that of previous Supplementary Human Dimension Meetings by its extended duration (two days instead of one). The desired informality of the proceedings was reinforced by the absence of any system of advance inscription of speakers. This facilitated free-flowing discussion between participants at the working sessions. The stated objectives of the meeting were to:

• Explore the central issue of freedom versus regulation in the exercise of the fundamental right to freedom of expression, consistent with OSCE human dimension commitments.
• Examine the various linkages between exercise of the right to freedom of expression and other issues that are the subject of OSCE commitments, aims and activities.
• Initiate a discussion within OSCE human dimension forums about freedom of expression and other OSCE commitments as they relate to expanding access to new technologies, including the Internet.

In pursuit of these objectives, the programme provided for three distinct working sessions which were spread over the two days of the meeting. Each working session dealt with a separate issue. The first session concentrated on legal and non-legal frameworks, including criminal defamation laws; the second addressed the role of free speech in advancing the objectives of the OSCE, while the third focused on broadening access to new information technologies.

The customary disclaimers to Recommendations adopted at OSCE Supplementary Human Dimension Meetings apply here as well. The Recommendations lack official status; are not consensual and do not necessarily reflect the views or policies of the Organization. The OSCE cannot implement all of the Recommendations. The value of the Recommendations is that they emerged from a consultative exercise involving a broad spectrum of interested parties from throughout the OSCE participating States. As such, they are likely to prove instructive in the formulation of future priorities, policies and strategies, as well as furnishing the Organization with a useful catalogue of issues to be addressed in its follow-up procedures to the Vienna meeting.

III LEGAL AND NON-LEGAL FRAMEWORKS, INCLUDING CRIMINAL DEFAMATION LAWS (WORKING SESSION 1)

(i) OSCE Commitments

The shortage of specific OSCE commitments to the legal protection of freedom of expression is partially compensated for by references to existing international law standards in this domain. Such references can be found in the Helsinki Final Act, 1975; [1] the CSCE Vienna Follow-up Meeting, 1986; [2] the Charter of Paris for a New Europe (CSCE Summit), 1990; [3] the Cracow Symposium on Cultural Heritage of the CSCE participating States, 1991; [4] the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 1991 [5] and the Mandate of the OSCE Representative on Freedom of the Media, 1997. [6] A further, unacknowledged reference to international freedom of expression standards is made in the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 1990. [7] The language used in the relevant section of this document is unmistakably redolent of relevant international legal norms. [8] This is also true of some of the language employed in the CSCE Seminar of Experts on Democratic Institutions, Oslo Report to the CSCE Council, 1991. [9] While there is an abundance of other references to the importance of, and OSCE participating States' (continued) commitment to, freedom of expression, and to a lesser extent, freedom of information, there are no specific references to defamation or to criminal defamation.

(ii) Issues raised

The first major vector of the discussion was the professional development of the media, particularly in transitional democracies. The training of journalists, the espousal of professional ethics, the elaboration of guidelines governing election coverage and the adherence of media professionals to balanced reporting in general, were all identified as priority issues. The issue of self-regulation of the media was mooted and elicited contrasting opinions from a number of participants. The merits of pluralism and diversity in the media sector, both in terms of sources of information and of ownership, were dwelt upon too. It was argued that public service broadcasting, despite its intrinsic importance to fostering diversity of media output, is of itself, an insufficient guarantee of the same. A mixed media environment, in which public broadcasting entities and private broadcasting enterprises co-exist, is required. The replication of such diversity in other media spheres was also countenanced. The usefulness of international involvement in efforts to stimulate the so-called “creation of media space” in individual participating States was referred to approvingly. The synergic effects of such a compact between national and international players were adverted to.

The desirability of economic, judicial and legal reforms for the promotion of free and effective media was explored from various angles. In the discussion of possible legal reforms, there was a discernible focus on the public official / ordinary citizen divide. The need for proportionality of remedies for successful defamation actions was illustrated by way of reference to the capability of excessive financial penalties to bankrupt media companies. Thus, a plea was entered for remedies to be proportionate to the harm caused by statements found to be defamatory, and not to the means of the publisher of the statement. Similarly, the discussion on the usefulness of legislation for the protection of sources was coloured by the fear that the disclosure of factual information could, on occasion, easily lead to the divulgence of sources, thus reducing the likelihood of individuals cooperating with the media. Such a climate of caution and non-cooperation with the media could conceivably prevent the emergence of information of public concern and thereby thwart rigorous public debate.

Structural censorship by governments, in all of its many tendrils, was roundly condemned by participants (see Recommendations infra). Attention also turned to more drastic forms of covert and indirect censorship: the intimidation and harassment of media professionals. The innovative approach to such problems adopted in Bosnia and Herzegovina (BiH), The FreeMedia Help Line, was documented. Established in November 1999 and overseen by the OSCE's Department of Media Affairs, the Help Line “serves as a confidential point of contact for BiH journalists and media professionals who feel threatened, intimidated, or physically in danger as a direct result of their work.” [10] This is, in essence, the first objective of the Help Line. The second is “to gather information on the treatment of journalists in BiH”. [11] In furtherance of these two aims, assistance is provided to journalists who have experienced intimidation and the information gathered is stored in a special database.

A brief résumé of ARTICLE 19's Defining Defamation: Principles on Freedom of Expression and Protection of Reputation [12] was offered, the central principles of which include: the outright abolition of criminal defamation (with its replacement, only where necessary, for example as an interim measure in states in transition, with appropriate civil defamation laws); the onus of proof must be beyond all reasonable doubt; the allegation must be false to the knowledge of the person making the statement; there must be intent to defame on the part of the maker of the statement; public officials are not entitled to higher levels of protection than ordinary citizens and criminal sanctions, such as prison sentences, including deferred sentences, should never be applied. It was argued that the traditional malleability of defamation laws in many countries should be curbed. For instance, the distinction between defamation and public order was explained and described as being of major importance: these are entirely different concerns and the same legal provisions should not be stretched in order to render them applicable to each. Nor should defamation laws ever be used to stifle legitimate criticism or to prevent questions about allegations of corruption from being raised. It was further argued that flags, symbols and countries ought to be denied protection under defamation laws. The submission by one participant that journalists prefer criminal defamation to civil defamation out of the fear that the latter could give rise to higher financial penalties than those negotiated in the commutation of criminal defamation cases, proved contentious.

(iii) Recommendations

The first Recommendation to emerge concerning general legislative frameworks was for participating States to ensure the full compliance of their domestic legislation with international standards such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). States should be particularly attentive to the scope of the limitation clauses contained in these treaties, as well as the jurisprudence of the European Court of Human Rights. Any restriction on freedom of expression must be prescribed by law and narrowly defined. The law should be precise and assessable (sic) and there ought to be an onus on the Government to demonstrate the validity of any restriction. Such restrictions should be subject to independent judicial review. The enhancement of judicial independence, in the interest of an equitable application of the law, formed the kernel of another recommendation. Judicial training was one suggested means of achieving this aim. The provision of unhindered access to information by State authorities was identified as necessary for ensuring optimal transparency in their activities. Only restrictions on access to information that are absolutely necessary in a democratic society should be allowed.

As the ability to express oneself and impart information is contingent on the ability to access information, participating States were exhorted to ensure the existence of legal guarantees of freedom of access to information. Governments should not resort to structural censorship or harassment of the independent media. This Recommendation would preclude the use of tax audits or limitations on access to materials or licensing regulations for obstructionist purposes. The need to avoid excessive concentrations of media ownership was also stressed, as was the need to accord “censorship by killing” greater condemnatory publicity.

The Recommendations addressed to participating States in the matter of defamation laws are extensive. Defamation laws should only be used when they are true to their genuine purpose and effect, i.e. the protection of the reputation of individuals against injury. They should not be used for the prevention of legitimate criticism of public officials or the exposure of official wrongdoing or corruption. Laws criminalizing defamation should only be used when absolutely necessary and some participants avered that they should be abolished completely. Under no circumstances should prison sentences or suspended sentences be meted out as sanctions in a defamation action – notwithstanding the allegation by one participant that criminal defamation laws are preferred by journalists for being less severe than the financial penalties imposed by civil defamation suits.

Several participants were of the view that public officials should not benefit from higher levels of protection than ordinary citizens under defamation laws. Other participants, however, favoured maintaining a distinction between the level of protection for public officials in the discharge of their duties and that to which ordinary citizens are entitled. The party alleging defamation should be obliged to prove the defamatory character of the impugned statement(s) beyond reasonable doubt. Moreover, the plaintiff should additionally have to prove that the statement in question was false; known to be false and that there was intent to defame. Journalists should not be compelled to disclose their sources in defamation actions and protection of confidentiality legislation could, in a more general context, provide necessary girding for the protection of sources. The truth of a statement of fact should be an ultimate defence in defamation actions, whereas liability should not be incurred, under defamation law, for the expression of an opinion. Symbols of the State and public authority do not enjoy a right to good reputation, as such, and consequently should not be entitled to protection under defamation law.

Persons charged with defamation should be entitled to legal aid and remedies for defamation should be proportionate to the damage caused. In this connection, it was suggested that the payment by the plaintiff of a deposit of 10% of the damages sought could help to reduce the level of damages.

It was recommended that the OSCE, through its institutions and field missions, assist governments (i) with the drafting of suitable legislation in the domain of freedom of expression, and (ii) with the application of existing legislation. Support for the further development of NGO capacity was also called for. OSCE backing for the institutionalization of media helplines, along the lines of the one already in place in BiH (described supra) was advocated. In the same vein, it was observed that many instances of intimidation of journalists take place outside of major metropolitan centres. The OSCE was requested to take due cognizance of this reality in its monitoring activities.

IV THE ROLE OF FREE SPEECH IN ADVANCING THE OBJECTIVES OF THE OSCE (WORKING SESSION 2)

(i) OSCE Commitments

There is a noticeable recurrence of pledges to protect and promote freedom of expression (and information) in the corpus of OSCE documents. One of these references distinguished itself from the bulk of the others by (i) its focus on the actual implementation of existing commitments in the realm of freedom of expression, and (ii) its forceful tone. Paragraph 11 of the OSCE Summit Declaration in Lisbon, 1996, reads: “…There is a need to strengthen the implementation of OSCE commitments in the field of the media, taking into account, as appropriate, the work of other international organizations…” This statement prefaced a call for the elaboration of a mandate for the appointment of an OSCE Representative on Freedom of the Media.

Other expressions of commitment to freedom of expression, in particular for the advancement of the goals of the OSCE, can be found, inter alia, in the following documents: the Helsinki Final Act, 1975; [13] the CSCE Vienna Follow-up Meeting, 1986; [14] the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 1990; [15] the Charter of Paris for a New Europe, CSCE Summit, 1990; [16] the Cracow Symposium on Cultural Heritage of the CSCE participating States, 1991; [17] the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 1991; [18] the CSCE Seminar of Experts on Democratic Institutions, Oslo Report to the CSCE Council, 1991; [19] Decisions of the Rome Council Meeting, 1993; [20] Towards a Genuine Partnership in a New Era, CSCE Summit in Budapest, 1994; [21] the Mandate of the OSCE Representative on Freedom of the Media, 1997; [22] the Istanbul Summit Declaration, 1999 [23] and the Charter for European Security, 1999. [24]

Specific references to the improvement of journalists' working conditions (especially in a transfrontier context) also feature regularly: the Helsinki Final Act, 1975; [25] the Concluding Document of the Madrid Meeting, 1983 [26] and the CSCE Vienna Follow-up Meeting, 1986. [27] A shift of emphasis is noticeable in subsequent documents: the protection of journalists from harassment and attacks begins to take precedence over the elimination of administrative obstacles to the practice of journalism. This sea-change in priorities is evidenced by provisions in: the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 1991 [28] and Towards a Genuine Partnership in a New Era, the CSCE Summit in Budapest, 1994. [29]

(ii) Issues raised

At the very outset of this working session, stress was laid on the cardinal importance of freedom of expression for ensuring that early warning signals of potential or nascent conflict situations reach those possessing the wherewithal to effectuate change and pre-empt the outbreak of hostilities. Numerous contexts in which the right to freedom of expression plays a vital role were then listed: confidence-building measures in situations of ethnic tension; conflict resolution and the promotion of peace; the securing of the rights of national minorities, in particular their linguistic rights and their right of access to the media; the enhancement of good governance; the upholding of the rule of law and the protection of the environment, especially in the context of the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 1998. [30] The corrective properties of freedom of expression, it was heard, are indispensable for bringing to light bad governance, corruption, murder, disappearances, harassment and attacks.

The discussion sifted through other issues, such as the mainstreaming of human rights into working practices of the media and other bodies, primarily through education. Encouragement was expressed for improved relations between information gatherers and the general public, the sharing of best journalistic practices, greater protection for journalists, as well as demonstrations of greater openness and outreach by all ramifications of the OSCE. The objective of creating an environment in which the rights of journalists would be secured was raised by a number of participants. This would entail conducting effective investigations into attacks and threats against journalists so as to bring an end to the climate of impunity that prevails in some Participating States in this regard.

The negative role that can be played by the media in fomenting enmity and intolerance did not escape scrutiny either. The exploitation of the media for terrorist and extremist designs was condemned, although a note of caution was sounded by some participants concerning the usage of loose appellation, which often involves subjective judgments. The suggestion to introduce a ban on the propagation of certain ideologies throughout the OSCE area failed to achieve consensus. Participants were alerted to the omission from OSCE freedom of expression commitments and from media commentary generally, of any reference to the trafficking of women and children.

Another pertinent suggestion to be mooted involved the drawing-up and implementation of self-regulatory codes by journalists themselves. Such models of self-regulation could be equated with journalistic self-responsibility. This suggestion drew opposition from some quarters, based on the tendency of self-regulation to form part of a rhyming couplet with self-censorship. Legislation, according to one participant, should allow for diversity of opinion and the consequent flourishing of civil society: minority viewpoints would not be rendered inaudible by a diversity of voices, the argument runs. Another suggestion, somewhere in between the antipodal standpoints which dominated the debate, was that to instil a greater sense of professional responsibility amongst journalists would allow an evolution of self-regulation in a way that would prevent it from donning the mantle of censorship.

The lot of national minorities was acknowledged to be an item of ever-increasing urgency on the international agenda. That the contiguous rights to study one's mother tongue and to use it in dealings with State authorities are not always honoured in practice proved a source of concern. Support was expressed for the dissemination of official documents and information in the native language of national minorities. Governmental reluctance to give full effect to the entire spectrum of internationally-recognized minority rights was explored. It was observed that the assertion of their rights by national minorities is often interpreted by governments as having onerous budgetary implications and even as amounting to a challenge to political stability. Tensions could be alleviated or even avoided by the careful balancing of individual (linguistic) preferences and the objective of social integration, it was claimed.

Some participants perceived it to be incumbent on journalists to play a role in the promotion of tolerance and the prevention of conflict-escalation. This perception was disputed by others, who took the line that the duty of the media was to inform through reporting and not to expressly encourage either ethnic ententes or conflict resolution.

The OSCE should be mandated to protect the independence of media outlets from political and proprietary influence, according to one participant. The involvement of the Representative on Freedom of the Media therein was similarly encouraged. It was also maintained that additional guarantees of media pluralism are needed. In the same vein, it was submitted that any attempts to counter trends of increased monopolization and concentration of financial control ought to follow the guidance offered by existing Council of Europe and European Union documents on the matter.

The participants were informed that in his first report to the Permanent Council of the OSCE, the Organization's Representative on Freedom of the Media, Mr Freimut Duve, adverted to two reasons why freedom of expression is fundamental to democracy: “the great tradition of the struggle for human rights” and previous experience of “what happens to societies and economies that do not allow for the necessary corrective function of public criticism.” [31] Infringements of the right to freedom of expression are often a precursor to, or alarm signal for, the overall deterioration of human rights in society; a symptom of a fever in the body politic. Nevertheless, the importance of freedom of expression is not restricted to preventive strategies. Its centrality to post-conflict rehabilitation was also emphasized. Deference to this perceived goal of freedom of expression is shown by the In Defence of the Future Series, a series of collections of essays published by the Office of the Representative on Freedom of the Media. [32] It was also announced that a new, associated initiative involving a Mobile Cultural Container was scheduled to commence in May 2001. This project, which shares the in defence of the future theme, was described as “a multi-functional, moveable structure which will be set up in towns affected by the tragic conflicts in post-Yugoslavia as a place for young people to reflect, to debate their future, to produce their own newspapers, to see exhibitions, to listen to music, to dance, to take part in theatrical evenings or to relax in an Internet café.” [33]

Freedom of information is a prerequisite for democracy and it has a special resonance during election campaigns and for the discussion of environmental concerns, as is evidenced by the provisions of the UN/ECE Aarhus Convention, 1998 (supra). Reference was made to ARTICLE 19's The Public's Right to Know: Principles on Freedom of Information Legislation [34] and a brief synopsis was offered of the key standards set out in that document. It was argued that the disclosure of information held by public bodies was crucial to the avoidance of conflict. A fundamental principle of governmental policy on official information should be that of maximum disclosure. Information should actively be brought to the attention of citizens. The few acceptable exceptions to this rule would have to comprise a core legitimacy for non-disclosure and this core should not be expanded unduly. A decision not to disclose information should be open to appeal before an administrative authority and the process should be quick and easy to access. In all cases, the criterion of public interest should be paramount.

It was pointed out that one salient shortcoming of the mandate of the OSCE Representative on Freedom of the Media is its non-inclusion of freedom of information. In this respect, it differs from other comparable international mandates. [35] OSCE Participating States adopted the Mandate of the Representative on Freedom of the Media by consensus at the end of 1997. [36] Criticism was also directed at the implementation of the Mandate: it emerged that some participants felt that the potential of the Office of the Representative on Freedom of the Media was being underutilized; that greater proactiveness should define the Representative's approach to issues within his sphere of competence and that the very position of the Office within OSCE structures should be reassessed. The annual Yearbook Freedom and Responsibility of the OSCE Representative on Freedom of the Media details the activities of the Office over the preceding 12 months. [37]

An array of measures to improve the effectiveness of the OSCE's preventive offices were explored. These included: regular and structured exchanges of information between OSCE field missions and journalists' organizations; more studious analysis of reports and other communiqués of specialized NGOs and the bolstering of early-warning devices with a commitment to take prompt responsive action. The need for the training of lawyers in media law and in international human rights law was raised, as was the need to ensure greater awareness amongst journalists of their rights. On a financial level, calls for increased funding and greater coordination of donor strategies, won support among participants. The natural symbiosis between international and local players for the purposes of project-work was also highlighted.

(iii) Recommendations

Provision ought to be made for the regular exchange of information about misuse of the media for the propagation of terrorism or ethnic intolerance. Tolerance in inter-ethnic relations should be fostered and the adoption of relevant policies to further this aim should be encouraged. The promotion of greater standards of professionalism and a keener sense among media professionals of the responsibilities that are par for the course were also recommended. So too was the provision of special training for journalists on reporting from conflict situations.

The mainstreaming of freedom of expression issues into the culture of government at both national and local levels should be ensured through the appropriate education of officials and the implementation of other measures. Cooperative initiatives involving government and civil society could help to sensitize the broader public to the importance and relevance of freedom of expression.

Journalistic freedom and the guaranteeing of legal and economic conditions facilitating the free flow of information should be given due attention. It will also be necessary to safeguard the independence of the media in the face of growing concentrations of media ownership and monopolization. In this regard, there should be encouragement of state involvement in public service broadcasting, on the proviso that the editorial independence of the public media be guaranteed.

A broadening of the mandate of the OSCE Representative on Freedom of the Media was called for, as was the coordination of donor strategies and the increased funding of media projects. There was support for the OSCE institutions to ensure greater inter-organizational cooperation with international bodies and NGOs operating at the regional level. Enhanced technical support for NGOs and media outlets was also favoured. Other suggested forms of assistance to the media included media law training, analysis of media laws, financial assistance and the promotion of self-regulation by the media themselves.

Special emphasis was placed on early warning mechanisms and on prompt responses thereto as complementary tools of conflict prevention. To this end, pertinent information should be given due publicity and careful consideration in order to help pre-empt the emergence of new conflicts. Regular exchanges of information and consistent co-operation between interested parties were also recognized as being crucial to the OSCE's overall preventive strategies. In addition, it was advocated that greater powers ought to be vested in OSCE field missions to enable them to respond expeditiously to violations of freedom of the media.

The importance of upholding the rights and freedoms of national minorities, in particular their right to unimpeded access to the media, was underlined. Further, the securing of the linguistic rights of national minorities should involve joint monitoring exercises by the OSCE Representative on Freedom of the Media, the ODIHR, the High Commissioner on National Minorities and the OSCE field presences.

V BROADENING ACCESS TO NEW INFORMATION TECHNOLOGIES (WORKING SESSION 3)

(i) OSCE Commitments

Prior to the present Supplementary Human Dimension Meeting in Vienna, the entire corpus of OSCE instruments lacked any specific reference to new information technologies. Given this flagrant void in the status quo ante, it can only be presumed that other freedom of expression commitments, especially insofar as they related to the print and electronic media, would have been applied analogously to the new information technologies. Of particular relevance would have been those provisions ensuring (a) equality of access to the (mass) media, and (b) diversity of information / content in the material disseminated by the (mass) media.

The former can be found in the Helsinki Final Act, 1975; [38] the Concluding Document of the Madrid Meeting, 1983; [39] the CSCE Vienna Follow-up Meeting, 1986; [40] the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 1990; [41] the CSCE Meeting of Experts on National Minorities in Geneva, 1991; [42] the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 1991; [43] the Oslo Recommendations regarding the Linguistic Rights of National Minorities, 1998 [44] and the OSCE Istanbul Summit - Charter for European Security, 1999. [45]

The latter, diversity and independence in the media, are contained in the Helsinki Final Act, 1975; [46] the Concluding Document of the Madrid Meeting, 1983; [47] the CSCE Vienna Follow-up Meeting, 1986; [48] the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 1990; [49] the Cracow Symposium on Cultural Heritage of the CSCE participating States, 1991; [50] the CSCE Meeting of Experts on National Minorities in Geneva, 1991; [51] the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 1991; [52] the CSCE Seminar of Experts on Democratic Institutions, Oslo Report to the CSCE Council, 1991; [53] Decisions of the Rome Council Meeting, 1993; [54] Towards a Genuine Partnership in a New Era (CSCE Summit, Budapest), 1994; [55] the Mandate of the OSCE Representative on Freedom of the Media, 1997; [56] the Oslo Recommendations regarding the Linguistic Rights of National Minorities, 1998 [57] and the OSCE Istanbul Summit - Charter for European Security, 1999. [58]

(ii) Issues raised

A broad range of issues were canvassed at this working session, the majority of which concerned access to, and the regulation of, new information technologies. The wider adoption of the practice in some States of systematically creating access points to Internet and other new information services in public places was encouraged. This would help to offset de facto inequality of access to such technologies. In many of the OSCE participating States, there is an uneven socio-economic distribution of access to new information services. The cost of access is high and the availability of such technology is often limited to capital cities and major metropolitan centres. The Internet should be an instrument of empowerment for all citizens, including disadvantaged groups.

Although the advent of the Internet and other new information technologies has revolutionized the communications industry, the potential which these unprecedented developments carry is not always positive. The so-called “dark side of the new diversity” [59] is a cauldron of socially-noxious forms of expression, including racism and xenophobia; paedophilia and pornography and other strains of cyber-crime. Article 10, ECHR, [60] and the jurisprudence that has grown up around it could offer valuable guidance for any attempts to regulate new technologies in order to prevent the dissemination of illegal and harmful forms of expression, such as those alluded to above. Such forms of expression would ordinarily be beyond the pale of protected speech under Article 10.

However, the very need for regulation of Internet remained a moot point. Various approaches were suggested and commanded differing levels of endorsement: government regulation; self-regulation by operators and Internet Service Providers and involving a system of classification or labelling of information; so-called 'co-regulation' at the European level and a minimalist approach to regulation. The pragmatics of regulation were also considered, in particular with reference to the control of access points such as digital gateways, decoders and electronic programme guides (EPGs).

Regulation is, however, only one example of governmental involvement in shaping the contours of the development of new technologies. There ought to be a responsibility on governments to initiate training programmes to facilitate broader access to such technologies. Furthermore, governments should lead by example by enhancing their own operational efficiency and transparency through increased reliance on Internet and other innovations in the administration of the State. Concern was voiced at a more insidious ramification of governmental control over the Internet: the dangers of State security or intelligence services interfering with electronic communications.

(iii) Recommendations

Foremost amongst the recommendations addressed to the OSCE participating States was an insistence that access to new information technologies, in particular the Internet, be democratized. To this end, it was urged that access be developed in public places, such as libraries, universities and post offices. Proactive policies should be devised and implemented to promote the use of Internet services and the development of new technologies. These policies could be consolidated by the necessary training of individuals. Diversity of content, especially in cultural and linguistic terms, should also be ensured. Good governance should be enhanced by the continued ascendancy of new technologies and the appropriate training of officials would form an integral part of this redoubled espousal of open government.

Equality of access to all operators was recommended, as was the limitation of risks of control through proprietary technology. The issue of regulation of the Internet gave rise to divergent recommendations. Some participants advocated regulating information available on the Internet in accordance with the guiding principles of Article 10, ECHR. Others favoured co-regulation, which is joint action between Internet Service Providers and Governments to stop banned content and to prevent access of minors to unsuitable material. Many participants also recommended that only the end-user should be entitled to regulate content. It was also suggested that the Internet could play a role in the promotion of inter-ethnic relations in post-conflict situations.

The fulcrum of the recommendations addressed to the OSCE institutions and field presences was the exploitation of the Internet's potential for enhancing democracy and promoting human rights. Standard-setting with a view to preventing the existence of national monopolies of both incoming and outgoing communication was also called for. It was recommended that all OSCE instruments be published online and that the Representative on Freedom of the Media should disseminate all reviews of freedom of information legislation and perhaps create a database of such information. A crucial recommendation was for OSCE field presences to provide legal and technical training for NGOs and other interested parties in new technologies. Central Asia was singled out as a priority area for the provision of such training.

VI CONCLUSION

The OSCE Supplementary Human Dimension Meeting on Freedom of Expression in Vienna was overambitious. It sought to trawl through a vast ocean of issues, but owing to time and other procedural constraints, only succeeded in skimming the surface of most issues. Nevertheless, the extended duration of the meeting, its thematic division into three sessions and the informality of the deliberative process undoubtedly did enable a large number of subjects to be broached. The discussions centred on topical concerns in the realm of freedom of expression; a realm of uncertain boundaries due to the relentless advances of technology in recent times. The diversity of participants, drawn from the entire OSCE region, ensured an exchange of views that was both informative and instructive. Similarly, the contributions of representatives of the NGO sector served to complement and to counterpoise those of official state representatives.

Other criticisms of the meeting are not so much focused on the meeting itself as on the OSCE and its modus operandi. The Organization lacks consistency in its approach to the issue of freedom of speech. This is particularly evident in OSCE documentation on the subject. The elaboration, over time, of a coherent body of commitments to freedom of expression would greatly facilitate a more effective approach to the protection and promotion of this fundamental freedom. It would also facilitate the implementation of follow-up measures to Recommendations and moreover, the OSCE would be well-advised to re-examine, recalibrate and revamp its currently under-effective follow-up practices as a matter of priority. Furthermore, the fact that the Recommendations adopted at the end of meetings such as this one are not consensus-based, deprives them of the necessary (moral) authority that would earn them greater respect from participating States. The political character of the Recommendations equally detracts from their enforceability.

Finally, the Mandate of the OSCE Representative on Freedom of the Media is not without shortcomings, both in theory and in practice. As observed in the course of the Vienna meeting, the Mandate could be considered restrictive. Freedom of information, which is inextricably linked to freedom of expression, does not fall within the ambit of the Representative's responsibilities. Nor, it is submitted, does the Mandate leave much scope for proactive endeavours in the name of freedom of expression and corollary freedoms. The political (as opposed to judicial) and, in practice, diplomatic nature of the Representative's activities are determinative considerations. However, this problem is compounded by the under-utilization of the potential that does exist. Greater emphasis could, for example, be placed on outreach and follow-up policies and practices. Legal and professional training programmes could be multiplied, especially in areas where the need for such training is most acute. If implemented, many of the recommendations wrought from the Vienna meeting would help to enhance the credibility of the Office of the Representative on Freedom of the Media. Of particular relevance here are the Recommendations aiming to secure the anchorage of diverse and independent media in fledgling democracies, as well as the democratization of access to new information technologies.

APPENDIX 1
Final Report, OSCE Supplementary Human Dimension Meeting - Freedom of Expression: New and Existing Challenges
Vienna, 12-13 March 2001
Available at: <http://www.osce.org/odihr/info/vie12mar2001_fr.html>

APPENDIX 2
Freedom of Expression, Free Flow of Information, Freedom of Media
CSCE/OSCE Main Provisions 1975-1999
FOM.GAL/11/00, 5 July 2000
Available at: <http://www.osce.org/fom/publications.htm>

APPENDIX 3
Mandate of the OSCE Representation on Freedom of the Media
OSCE Permanent Council Decision No. 193, 5 November 1997
Available at: <http://www.osce.org/fom/mandate.htm>

[1] Declaration on Principles Guiding Relations between Participating States: Section VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief.

[2] Para. 34.

[3] In the 'Human Rights, Democracy and Rule of Law' Section.

[4] Paras. 6, 6.1.

[5] Paras. 26, 26.1, 28.9.

[6] Decision No. 193 of the Permanent Council of the OSCE of 5 November 1997. See, in particular, para. 1.

[7] Para. 9.1.

[8] See further, paras. 10, 10.1.

[9] See, for example, Section II.26.

[10] OSCE FreeMedia Help Line Issues Annual Report, Press Release of 10 April 2001, available at: http://www.oscebih.org/pressreleases/april2001/10-04-helpline2000.htm; FreeMedia Help Line Summary Report for 2000, available at: http://www.oscebih.org/oscebih_eng.asp.

[11] The website of the FreeMedia Help Line: http://www.oscebih.org/mediaaffairs/eng/media-affairs-helpline.htm.

[12] ARTICLE 19, London, July 2000. These Principles are also available online at: http://www.article19.org.

[13] Section IV, Chapter II, Information.

[14] Co-operation in Humanitarian and Other Fields, Information, Para. 34.

[15] Paras. 7.8, 9.1, 10, 10.1.

[16] Human Rights, Democracy and Rule of Law.

[17] Para. 6.

[18] Para. 26.

[19] Section II.26.

[20] Section IV.6.

[21] Para. 36.

[22] Decision No. 193 of the Permanent Council of the OSCE of 5 November 1997. See, in particular, paras. 1 – 3, 6.

[23] Para. 27.

[24] Para. 26.

[25] Section IV, Chapter II, Information: (c) Improvement of Working Conditions for Journalists.

[26] Co-operation in Humanitarian and Other Fields, Information.

[27] Co-operation in Humanitarian and Other Fields, Information, paras. 34; 39-44. See also, the Mandate of the Representative on Freedom of the Media, para. 2.

[28] Para. 34. See also para. 28.9.

[29] Para. 37.

[30] Drawn up in Aarhus, Denmark, on 25 June 1998, available at: http://www.unece.org/env/pp/treatytext.htm.

[31] First Report of the Representative on Freedom of the Media to the OSCE Permanent Council, 15 January 1998, available at: http://www.osce.org/fom/staffreports/pc.15ja98.htm.

[32] See further, the shortened preface to The Caucasus – Defence of the Future (Folio, Vienna, 2000), available at: http://www.osce.org/fom/publications/yearbook0001/I/021.html. Publication and other details are available at: http://www.osce.org/fom/future_book.htm. Information about In Defence of the Future – Searching in the Minefield (Folio, Vienna-Bolzano, 1999) is available at: http://www.osce.org/fom/publications/yearbook9900/I/015.html.

[33] Diana Moxhay (Senior Advisor, Office of the OSCE Representative on Freedom of the Media), The Role of Free Speech in Advancing the Objectives of the OSCE, Presentation of 12 March 2001, FOM.GAL/6/01.

[34] ARTICLE 19, London, June 1999. These Principles are also available online at: http://www.article19.org.

[35] For a more in-depth comparative analysis of the mandates of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, see: Report on the Second International Seminar on Promoting Freedom of Expression With the Three Specialised International Mandates (ARTICLE 19, Global Campaign for Free Expression, London, February 2001). The Report is available at: http://www.article19.org.

[36] Mandate of the OSCE Representation on Freedom of the Media, OSCE Permanent Council Decision No. 193, 5 November 1997, available at: http://www.osce.org/fom/mandate.htm.

[37] The third annual Yearbook 2000/2001 Freedom and Responsibility of the OSCE Representative on Freedom of the Media was launched on 4 April 2001. See further the Press Release of the Representative on Freedom of the Media, available at: http://www.osce.org/news/generate.php3?news_id=1602. The two previous Yearbooks are available at: http://www.osce.org/fom/publications.htm.

[38] Section IV, Chapter II Information: (a) Improvement of the Circulation of, Access to, and Exchange of Information, and (b) Co-operation in the Field of Information.

[39] First two paragraphs.

[40] Paras. 34-36.

[41] Paras. 7.8, 9.1, 10.1.

[42] Section VII.2.

[43] Paras. 26.1, 26.2.

[44] Paras. 8-11. The Oslo Recommendations are not included in Appendix 1, but are available at: http://www.osce.org/hcnm/documents/oslo/osleng.html.

[45] Para. 26.

[46] Section IV, Chapter II Information: (a) Improvement of the Circulation of, Access to, and Exchange of Information, (b) Co-operation in the Field of Information, and indirectly, (c) Improvement of Working Conditions of Journalists.

[47] Section entitled 'Co-operation in Humanitarian and Other Fields Information' (sic).

[48] Paras. 34-38.

[49] Paras. 7.8, 9.1, 10.1.

[50] Paras. 6.1, 6.2.

[51] Section VII.2.

[52] Paras. 26, 26.1, 26.2, 28.9.

[53] Sections II.26, II.27.

[54] Section IV.6.

[55] Para. 36.

[56] Para. 5.

[57] Paras. 8-11. The Oslo Recommendations are not included in Appendix 1, but are available at: http://www.osce.org/hcnm/documents/oslo/osleng.html.

[58] Para. 26.

[59] D. Goldberg, T. Prosser & S. Verhulst, Regulating the Changing Media (Oxford, Clarendon Press, 1998), p. 16.

[60] Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Published 05.07.2002