3.4 Freedom of Expression /Media Pluralism – European Area of Freedom Security & Justice

Legally sophisticated authoritarians: the Hungarian Lex CEU

ORIGINAL PUBLISHED ON VERFASSUNGSBLOG

On 28 March the Hungarian government tabled an amendment to the Act on National Higher Education in Parliament. Even though the draft is formulated in normative terms, the only targeted institution is the Central European University (CEU), founded by George Soros, one of the main enemies of the Viktor Orbán’s ‘illiberal state’. Michael Ignatieff, former professor of Harvard University’s John F. Kennedy School of Government, current president and rector of CEU assessed the draft as a discriminatory political vandalism, violating Hungarian academic freedom. Here I do not want to deal with the clear ideological and political motivations of the action of the current Hungarian Prime Minister, a that time liberal recipient of Soros’s financial support during his studies in Oxford three decades ago.

I want rather focus on the behavior of a contemporary authoritarian (or dictator, as Jean-Claude Juncker, the President of the European Commission once greeted him). As William Dobson argues is his book, The Dictator’s Learning Curve, “today’s dictators and authoritarians are far more sophisticated, savvy, and nimble that they once were”. They understand, as Orbán does, that in a globalized world the more brutal forms of intimidation are best replaced with more subtle forms of coercion. Therefore, they work in a more ambiguous spectrum that exists between democracy and authoritarianism, and from a distance, many of them look almost democratic, as the leader of Hungary, a Member State of the EU, does. Their constitutions, as the Fundamental Law of Hungary, often provide for a division of powers among the executive, the legislature, and the judiciary – at least on paper. They are also not particularly fearful of international organizations. Even a threat of foreign or international intervention and criticism can be a useful foil for stirring up nationalist passions and encouraging people to rally around the regime, as for Orbán, who claims to protect Hungary to became a colony of the EU. If necessary, they use the most refined European discourses, for instance about national constitutional identity, as the Orbán government did in order not to take part in any European efforts to solve the refugee and migration crisis. And as opposed to previous dictators of the old good times of totalitarian regimes, who just closed up organizations they did not like, without any scruples, today’s authoritarians take advantage of formalistic legal arguments against their enemies. The Russian authorities in the fall of 2016 revoked the educational license of the European University in St. Petersburg following unscheduled checks in the buildings referring to several violations against regulations, such as lack of fitness room and an information stand against alcoholism.

Similarly, the new draft law of the Hungarian government also uses legal tricks to force CEU to cease operation in Budapest. Such a clearly unacceptable requirement would be to open an additional campus in the State of New York. This wasn’t a condition in 1995, when CEU, holding a charter from the New York State Education Department, received its license to operate in Hungary from the Ministry of Culture and Education. Like other international universities chartered in the US, CEU does not maintain any academic or other programs in the United States. Moreover, in 2004 Hungary promulgated a special law on the establishment of Közép-európai Egyetem (KEE) as a Hungarian university, which was accredited by the Hungarian Accreditation Committee together with ten graduate and doctoral programs of the CEU as programs of KEE. Ever since the university has a dual legal entity, as KEE and CEU, but it is one university with only one campus, one academic staff, senate and rector, the latter appointed by the President of Hungary. According to the new law Hungarian universities could only deliver programs of European universities and not of countries from the OECD (including the US), therefore KEE, the Hungarian university could no longer deliver its single set program with CEU, which was allowed under the current law.

The amendment if passed would make it impossible for CEU to continue its research and teaching activities, including its highly ranked comparative constitutional law LLM and SJD programs. This violates scientific freedom in Hungary, which on paper is still part of the Hungarian Fundamental Law. In the absence of an independent constitutional court in Hungary, the only domestic ‘remedy’ which one can imagine in an authoritarian regime is that the ‘wise leader’ graciously withdraws from his plan.

(*) Halmai, Gábor: Legally sophisticated authoritarians: the Hungarian Lex CEU, VerfBlog, 2017/3/31, http://verfassungsblog.de/legally-sophisticated-authoritarians-the-hungarian-lex-ceu/, DOI: https://dx.doi.org/10.17176/20170401-102552.

What is the point of minimum harmonization of fundamental rights? Some further reflections on the Achbita case.

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Eleanor Spaventa, Director of the Durham European Law Institute and Professor of European Law, Law School, Durham University

Ronan McCrea has already provided a very thoughtful analysis of the headscarf cases; this contribution seeks to complement that analysis by focusing on two issues arising from the Achbita case: first of all, the structural problems with the ruling of the Court, both in terms of reasoning and for the lack of information provided; secondly, the more general implications of the ruling for fundamental rights protections and the notion of minimum harmonization in the EU context.

It might be recalled that in the Achbita case a Muslim woman was dismissed from her employer for refusing to remove her headscarf, contrary to the employer’s policy of neutrality, which included a ban on wearing religious symbols. The case then centred on the interpretation of the framework discrimination Directive (2000/78) which prohibits, inter alia, discrimination on grounds of religion. The Belgian and French Government (which had a direct interest because of the Bougnaoui case) intervened in favour of the employee, believing that the discrimination at issue was not justified (Achbita opinion, para 63). The Court, following the Opinion of AG Kokott, found that the rules at issue might constitute indirect discrimination; that the employer’s aim to allegedly maintain neutrality was a legitimate aim as it related to its freedom to conduct a business as protected by Article 16 Charter. It then indicated that the policy was proportionate, if applied with some caveats.

The reasoning of the Court – some structural deficiencies

The headscarf cases are of fundamental importance to the European Union and to all of its citizens, not only those who practice a non-dominant religion, and as such have been widely reported even outside of the EU. One might have expected the Court to engage with a more thorough analysis of the parties’ submissions and of the issues at stake. Instead, we have two very short rulings with very little detail. Just to give an important example – in both cases the French and the Belgian governments sided with the claimants, hence drawing a very important conceptual limit to the principle of laïcité which is justified, in this view, because of the very nature of the State and its duty of neutrality, a duty which cannot be extended to private parties (or if so only exceptionally). This important distinction is not discussed in the ruling, not are the views of the governments who would be directly affected by the rulings.

More importantly though, the fact that the arguments of the parties are not recalled has also more general consequences: as it has been noted by Bruno De Witte elsewhere, the fact that no hermeneutic alternative is provided might give the impression that no hermeneutic alternative is in fact possible, as if legal interpretation is simply a matter of discovering the true hidden meaning of a written text. This approach, not uncommon in civil law jurisdiction but more nuanced in constitutional cases, hides the fact that, especially in cases of constitutional significance, there is more than one legitimate interpretative path that could be chosen, which also reflect different policy alternatives. Interpretation then is also a choice between those different paths: a choice which is, of course, constrained by the relevant legal system and one that might be more or less persuasive. The failure to acknowledge counter-arguments then results in rulings, like the ones here at issue and many others in sensitive areas, which are not only potentially unhelpful, but also close the door to more effective scrutiny of the reasons that lead the Court to follow a given interpretation.

In the same vein, the analysis of the discriminatory nature of these provisions is rather superficial. In particular, there is no thought given to the fact that contractual clauses allegedly protecting a principle of neutrality, might not only have a discriminatory effect against certain individuals, but might have important inter-sectional (or multiple) discriminatory effects. In other words, a rule banning religious symbols might in fact also have a more pronounced effect on people from a certain ethnic background or a certain gender. Equally disappointing, and in this writer’s opinion legally flawed, is the approach taken in relation to the finding of the potentially indirectly discriminatory effects of the rules at issue. Here, the Court requires the national courts to determine whether the ‘apparently neutral obligation [(not to wear religious symbols)] (…) results in fact in persons adhering to a particular religion or belief being put at a particular disadvantage.” (para 34, emphasis added).

There are two issues to be noted here: first of all, the Court remains silent as to what type of evidence of indirect discrimination is required, and by whom. In discrimination cases, burden of proof is crucial. This is recognised by the discrimination directives at EU level, including Directive 2000/78 which provides that if the claimant shows direct or indirect discrimination, then it is for the ‘respondent to prove that there has been no breach of the principle of non-discrimination’ (Article 10(1)). One would have expected then the Court of Justice to instruct the national court to require the defendants to discharge this duty with a certain rigour, also by means of statistical analysis of the effect of such policies on religious minorities. Yet, the Court does not even engage with this question.

Secondly, and not less important, the Court seems to imply that a rule that discriminates all religious people would not be problematic. For instance if, say, Muslims and Orthodox Jews were equally discriminated against, whilst non-religious persons were unaffected, then, based on the dicta of the Court, there would be no discrimination. This interpretation seems restrictive and not supported by the text of the directive (or the Charter) that refers to discrimination on grounds of religion in general. In any event, in discrimination cases it is crucial to identify the comparator, and the Court fails to do so clearly and to support its choice with sound legal arguments. But, beside these very important structural issues, the Achbita ruling raises other more technical as well as general issues, as to the extent to which the Court’s interpretation might affect the Member States’ discretion to provide more extensive protection that that provided for in the Directive.

Minimum harmonization and fundamental rights

Directive 2000/78 is intended only to set minimum standards, so that Member States can, if they so wish, provide for a more extensive protection. Indeed many Member States have done so by extending either the protected categories of people, or the field of application of the legislation, or both. In theory then, the Achbita ruling should not be seen as the last word in relation to the treatment of religious people at work. After all, if Belgium or France or any other country finds the ruling problematic, it can simply pass legislation prohibiting private employers from requiring religious neutrality from its employees, unless of course a specific dress code is necessary to ensure the health and safety of the worker or the public. Viewed in this way, and notwithstanding the structural problems identified above, the ruling seems very sensible: it is agnostic, in that it does not impose either model on Member States, allowing therefore a degree of variation in a very sensitive area, something which, as eloquently discussed in McCrea’s post, might not be a bad thing. After all, this is the same path that has been taken by the European Court of Human Rights.

However, things are slightly more complicated in the European Union context. In particular there is nothing in the ruling to indicate that the Directive sets only minimum standards so that it would be open to those Member States to go further in protecting people holding religious beliefs. And, more crucially, the Court, mirroring the opinion of Advocate General Kokott, refers to the EU Charter of Fundamental Rights when assessing the legitimacy of the justification put forward by the employer. In particular, it finds that the business’s wish to ‘project an image of neutrality (…) relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate’.

The reference to the Charter, which indirectly frames the question as a clash of fundamental rights, is important because, in the EU context, when the Charter applies it sets the fundamental rights standard. In simpler terms this means that should a Member State wish to provide more extensive protection to ensure that employees are not discriminated on grounds of their religious belief, something that is allowed under Directive 2000/78, it might be prevented from doing so since, pursuant to the Achbitaruling, it would infringe the right to conduct a business as protected by the Charter. In this way, far from leaving the desired flexibility and discretion to the Member States, the Court sets the standard – employers have a fundamental right, albeit with some limitations, to limit the employees’ right not to be discriminated against. One might well ask then, much as it has been remarked in relation to the Alemo Herron case, what is the point of minimum harmonization directives if the upward discretion of the Member States is so curtailed.

Conclusions

The Court of Justice did not have an easy task in the Achbita case: it was pretty much a ‘damned if you do, damned if you don’t’ scenario. For sure, some of us would have liked the balance at issue to be tilted firmly in favour of religious minorities, especially given the growing evidence of attacks and discrimination against, particularly, Muslim women. The Court chose a different path and that is, of course, within its prerogatives. However, the way that path was trodden upon leaves many open questions both in relation to the way the result was achieved, and to the many questions it overlooks. What is most troubling is the implication that the freedom of Member States to provide greater protection towards minorities may, in principle, be constrained by the Court’s interpretation of the freedom to conduct a business.

Barnard & Peers: chapter 9, chapter 20

Headscarf bans at work: explaining the ECJ rulings

ORIGINAL PUBLISHED ON EU LAW ANALYSIS ON TUESDAY, 14 MARCH 2017

Professor Steve Peers

When can employers ban their staff from wearing headscarves? Today’s rulings of the ECJ have attracted a lot of attention, some of it confused. There have been previous posts on this blog about the background to the cases, and about the non-binding opinions of Advocates-General, and there will hopefully be further more analytical pieces about today’s judgments to come. But this post is a short explanation of the rulings to clear up any confusion.

Background

The EU has long had laws on sex discrimination, and discrimination regarding EU citizens on grounds of nationality. Since 2000, it has also had laws against race discrimination and also a ‘framework directive’ against discrimination at work on grounds of disability, age, sexual orientation or religion. The ECJ has often been called upon to rule on the first three of those grounds, but today’s two judgments (G4S v Achbita and Bougnaoui) are the first time it has been asked to rule on non-discrimination at work on religious grounds.

EU law does not generally apply to other aspects of religion, except that EU law on asylum applies to people who have been persecuted on religious grounds. So today’s judgments are not relevant as regards regulating religion in education, for instance.

It should also be noted that the European Convention on Human Rights (ECHR) protects the freedom of religion. The European Court of Human Rights – a separate body – has previously ruled on how that freedom applies in the workplace, concluding that in some cases employers must allow employees who wish to wear religious symbols (see Eweida v UK, for example).

The rulings

The G4S ruling is the more significant of the two cases, in which the ECJ’s reasoning is most fully set out. First the Court rules that clothing worn for religious reasons is an aspect of religious belief. Then it concludes that there was no direct discrimination (ie discrimination purely on religious grounds) against Ms. Achbita, who was not allowed to wear a headscarf when dealing with customers, because her employer had a general ban on any employee display of religious or political belief.

Next, the ECJ ruled on whether there was any indirect discrimination (ie discrimination not on religious grounds, but which affected people of a particular religion more than others). Such discrimination can be ‘objectively justified by a legitimate aim…if the means of achieving that aim are appropriate and necessary.’ In the Court’s view, the national court which had asked the ECJ these questions should consider that an employer’s ‘neutrality’ policy regarding customers was ‘legitimate’, and was part of its ‘freedom to conduct a business’.

However, such as policy had to be ‘systematic’ and ‘undifferentiated’ as regards different beliefs. It also should be considered whether it was limited to those workers who ‘interact with customers’, and whether it would have been possible to reassign the employee to a different role without ‘visual contact’ with customers, without the employer taking on an extra burden.

In the second case, the Court ruled that employers could not discriminate due to a customer request that employees not wear a headscarf. This was not ‘a genuine and determining occupational requirement’ that could justify reserving a job to those who did not wear headscarves.

Summary

The ECJ’s rulings must be applied by the two national courts that requested it to rule. They are also binding more generally on the courts of all 28 EU Member States.

In principle the rulings mean that employers may ban employees from wearing headscarves, but only in certain cases. First of all, the cases only concern customer-facing employees, on condition that the employer has a ‘neutrality’ policy. The ECJ was not asked to rule on other groups of employees, but its rulings indicate that it would be more difficult, if not impossible, to justify bans in those cases. Nor was it asked to clarify further what a ‘customer-facing’ employee is exactly.

A neutrality policy mean an employer also has to ban other religious or political symbols worn by customer-facing employees. So no kippas, no crucifixes, no turbans – and no icons of Richard Dawkins either. This could be rather awkward in light of the human rights case law referred to above, which says wearing crucifixes (for instance) is sometimes an aspect of an employee’s right to manifest her freedom of religion.

There is a thin line between saying that employee headscarves can’t be banned just because customers ask for it on the one hand, and allowing employers to ban such clothing in effect due to anticipation of customer reaction. In practice this might prove something of a legal fiction.

The bottom line is that today’s judgments do not constitute a ‘workplace headscarf ban’, but merely permit employers to establish such a ban – subject to limits which might prove difficult to comply with in practice.

The Ever-expanding National Security State in Europe: the Case of Poland

by Luigi LIMONE (*)

One of the most alarming developments across the European Union is the effort by States to make it easier to invoke and prolong a “state of emergency” as a response to terrorism or the threats to violent attacks. Emergency measures, which are generally supposed to be temporary, have become embedded in ordinary criminal law. Parliaments across the European Union are adopting a number of coercive measures in fast-truck processes, leaving little time for consideration on their impact on human rights and civil liberties.

In compliance with international human rights law, exceptional measures should only be applied in genuinely exceptional circumstances and, as stated by Article 15 of the European Convention on Human Rights (ECHR), “in time of war or other public emergency threatening the life of the nation”.

Nevertheless, phenomena such as the rise of nationalist parties, anti-refugee sentiment, stereotyping and discrimination against Muslims communities, intolerance for speech or other forms of expression, risk that this “emergency measures” will target certain people for reasons which have nothing to do with a genuine threat to national security or from terrorist-related acts.

Up to now, France is the only EU Member State to have formally declared a state of emergency on national security grounds for terrorism-related acts on the last couple of years. However, other Member States have passed laws in fast-track processes and engaged in operations in response to real or perceived security threats. A clear example comes from Austria and Hungary, which have recently invoked the threat of terrorism in the context of the refugee crisis with profoundly negative impact on the right to seek and enjoy asylum in Europe.

One of the countries which is currently attracting the attention of several NGOs working in the field of human rights protection is Poland. Several cases of human rights violations as well as dismantlement of the rule of law have been reported since the Law and Justice (Prawo i Sprawiedliwość) party came to power in October 2015.

In June 2016, Poland enacted a new Counter-terrorism Law following a fast-track legislative process. This law consolidates sweeping powers in the hands of the Internal Security Agency (ISA) and, combined with other recent legislative amendments, it creates conditions for violations of the rights to liberty, privacy, fair trial, expression, peaceful assembly and non-discrimination.

The new Counter-terrorism Law gives a broad and vague definition of terrorism which paves the way for: a) the expansion of indiscriminate mass surveillance powers; b) the targeting of foreign nationals; c) the extension of pre-charge detention.

According to Amnesty International, such an ill-defined and imprecise definition allows for disproportionate interference with human rights as well as arbitrary application and abuse.

The UN Human Rights Committee recommended in October 2016 that a definition be adopted that “does not give the authorities excessive discretion or obstruct the exercise of rights”.

The Counter-terrorism law includes provision for the Director of the Internal Security Agency to order the immediate blocking of specific websites with no prior judicial authorization if he or she considers that a delay could result in “terrorist incident”. Such a provision compromises the right to freedom of expression, including the right to seek, receive and impart information.

Freedom of peaceful assembly is also under threat under the new Counter-terrorism Law.

The Law, in fact, establishes a terror alert system which, if it reaches the level of three or four, allows the authorities to ban assemblies and large-scale events in particular locations.

The lack of transparency in the operation of the alert system, together with the vague definition of terrorism, could result in violations of the right to peaceful assembly and freedom of expression. As a result, the terror alert system could be used by the government as an excuse to ban peaceful public protests against its policy on a wide range of issues, including abortion or Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) rights.

Foreign nationals in Poland are particular targets of the new Counter-terrorism Law. They can be subjected to a range of covert surveillance measures, including wire-tapping, monitoring of electronic communications and surveillance of telecommunication networks and devices without any judicial oversight for the first three months.

Such surveillance is permitted if there is a “fear” that a foreign national may be involved in terrorism-related activities. In addition, the Law does not provide procedural safeguards to ensure that anyone made aware of surveillance can challenge it and have access to an effective remedy against unlawful surveillance. It also impacts Polish citizens who communicate or live with foreigners under investigation.

Poland’s new Counter-terrorism Law also provides for 14 days of detention without charge of people suspected of “terrorist crimes”. Since such detention measures can be adopted on the basis of information obtained through the broad surveillance powers given to the executive, the suspects and their lawyer may be denied access to the evidence upon which the pre-charge detention is based. Given the fact that the new surveillance powers primarily target foreigners, such measures could discriminate against non-nationals and have a disproportionate impact on foreign individuals, their families and communities.

Furthermore, the situation in Poland appears very critical when it comes to criminal law and to protection from discrimination and hate crimes in particular. While the country has made some progress in addressing hate crimes against certain groups, it has left others entirely behind, thus creating a double system and a significant protection gap in law as well as in practice.

Polish criminal law provides for the investigation and prosecution of hate crimes motivated by race, ethnicity, nationality, religion and political affiliation. However, it does not establish that age, disability, gender, gender identity and expression, sexual orientation and social or economic status are grounds to investigate and prosecute hate crimes.

As stated in a report published by Amnesty International in September 2015, members of ethnic minorities, refugees, asylum-seekers and migrants continue to experience discrimination and violence in practice. In addition, transgender and intersex people are not explicitly protected from discrimination on grounds of gender identity and expression, and protection on the grounds of disability and religion is limited as well.

The situation is particularly crucial with regard to discrimination motivated by gender identity as well as expression and sexual orientation. LGBTI people are not sufficiently protected, as demonstrated by the huge number of homophobic and transphobic hate crimes. As far as women and girls are concerned, they continue to face obstacles in accessing legal and safe abortion and frequent cases of sexual harassment and rape are still being reported.

The current legal framework governing abortion in Poland is one of the most restrictive in Europe with terminations legally permitted only when the life of the foetus is under threat, when there is a grave threat to the health of the mother and in the instance that the pregnancy resulted from rape or incest.

A new bill proposing to further restrict sexual and reproductive rights was submitted to Parliament on 5 July 2016. The restrictive measure is intended to ban abortion in all circumstances except for when it is considered to be the only means available to save a woman’s life. It would also criminalize women and girls who are found to have obtained abortion as well as the people encouraging or assisting them to do so.

Following mass protests and women’s strikes, the bill has been eventually rejected but the government, supported by the Polish Catholic church, has announced that it is considering other restrictions, including a total ban of emergency contraception and of the morning after-pill in particular.

In conclusion, significant deterioration in several areas has been observed since the Law and Justice party’s assumption of power in October 2015. A total of 148 new laws and legislative amendments have been enacted since then, which have led to serious violation of several fundamental rights enshrined in international human rights treaties, including the right to life, health and freedom from torture and other inhuman or degrading treatment as well as the right to privacy, information, equality and non-discrimination.

(*) FREE Group Trainee

Sources:

– Dangerously Disproportionate: The Ever-expanding National Security State in Europe, by Amnesty International, 17 January 2017, Index number: EUR 01/5342/2017

– Poland: Submission to the United Nations Human Rights Committee – 118^th session, 17 Oct.-04 Nov. 2016, Index number: EUR 37/4849/2016

– Poland: Dismantling Rule of Law?, Amnesty International Submission for the UN Universal Periodic Review – 27^th Session of the Upr Working Group, April/May 2017, EUR: 37/5069/2016

TERRORISM : EDRI RECOMMENDATIONS FOR THE EP REPORT ON TERRORISM

FOR A GENERAL OVERVIEW OF THE LEGISLATIVE PREPARATORY WORKS OF THE EU DIRECTIVE ON TERRORISM SEE HERE

EDRI Recommendations for the European Parliament’s
Draft Report on the Directive on Combating Terrorism (NDR : emphasis are added)

In the view of the Civil Liberties, Justice and Home Affairs Committee (LIBE)’s legislative work on the Directive on Combating Terrorism , European Digital Rights (EDRi) would like to make a set of recommendations regarding the provisions falling within our scope of work, i.e. the protection of human rights in the digital environment. The absence of comments on certain provisions shall not be interpreted as an endorsement.

EDRi supports the aim of achieving a united, coherent and effective response to terrorism. Notwithstanding the importance of ensuring that adequate measures are in place to fight terrorism, EDRi is concerned about the speed that this file is taking. Terrorism is a very complex issue and laws must be balanced, smart and work in times of crisis. With the view to being constructive in this process, EDRi encourages the rapporteur, shadow rapporteurs and LIBE members to consider EDRi’s recommendations outlined before, when and after proposing amendments. EDRi’s wording proposals are based on the Commission’s proposal unless expressly specified (in the latter case, to explain the changes needed to the rapporteur’s draft report).

I. Human Rights Impact assessment needed

EDRi regrets the absence of an impact assessment. This is in contradiction with the EU Better Regulation Guidelines and the European Commission’s Better Regulation tool No. 24. While parts of the text are similar to the 2008 Framework Decision, six years is a very long time to wait for a review of an issue of such importance. In addition, the Council and the Parliament rapporteur are proposing new elements without any obvious evidence base.

Civil society has not been awarded the opportunity to provide input, evidence or expertise prior to the proposal of the Directive. The justification given by the Commission was based on the urgency of the file. However, this contradicts the Member States’ proposal to transpose the Directive not in twelve months as proposed by the European Commission and the EP rapporteur, but in twenty-four months.
EDRi’s proposal:

We urge the European Parliament to ask the European Commission to conduct an Impact assessment immediately.

II. Strong and meaningful human rights safeguards

a) General clause

Contrary to the Framework Decision 2002, as amended in 2008, the Commission’s proposal for a Directive does not contain any reference to fundamental rights and freedoms in the Articles.

• Recital 19 should be deleted and replaced by a new Article

We consider it problematic that Recital 19 states that the Directive respects fundamental rights, since this is not necessarily a given. A similar phrasing was also used in Recital 22 of Directive 2006/24/EC (the Data Retention Directive), which was later ruled to be in violation of the Charter of Fundamental Rights of the European Union. An adequate fundamental rights clause should emphasise the limitations on fundamental rights that will be put in place as a result of this Directive, as well as the duty of Member states to observe such rights when implementing it, so judges can interpret the law adequately.

EDRi thus recommends rephrasing Recital 19 and converting it into an Article, based on the wording used in Article 1(2) of the 2002 Framework Decision on Combating Terrorism, Article 2 of the 2008 Framework Decision on Combating Terrorism, Article 12 of the Convention on the Prevention of Terrorism of the Council of Europe and Article 8 of the Additional Protocol. In addition, the Directive should emphasise that restrictions on fundamental rights must be provided for by law, be necessary and proportionate for the aim pursued..

EDRi’s proposal (providing an alternative wording for the rapporteur’s AM 53):

Article 23a (new): Fundamental Rights and Principles
1. This Directive respects the principles recognised by Article 2 of the Treaty on the European Union, respects fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including those set out in Chapters II, III, V and VI thereof which encompass inter alia the right to liberty and security, freedom of expression and information, freedom of association and freedom of thought conscience and religion, the general prohibition of discrimination in particular on grounds of race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, the right to respect for private and family life and the right to protection of personal data, the principle of legality and proportionality of criminal offences and penalties, covering also the requirement of precision, clarity and foreseeability in criminal law, the presumption of innocence as well as freedom of movement as set forth in Article 21(1) of the Treaty on the Functioning of the European Union and Directive 2004/38/EC. shall not have the effect of altering the obligation to respect fundamental rights and fundamental legal principles as enshrined in the Charter of Fundamental Rights of the European Union and Articles 2 and 6 of the Treaty on European Union, as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms and International humanitarian law.
2. Restrictions to fundamental rights and freedoms must be provided for by law, be necessary and proportionate for the aim pursued.
3. This Directive has to be implemented in accordance with these rights and principles the Charter of Fundamental Rights and principles of EU law.

b) Non-discrimination

The current text of the proposed Directive seems to be neutral, but taken into account the explanatory memorandum and certain provisions of the draft Directive, this legal instrument is highly likely to be discriminatory in practice. As the UN Special Rapporteur on Counter-Terrorism and Human Rights points out, “on paper most strategies to counter violent extremism are generic. In practice, however, they tend to target specific groups determined to be most ‘at risk’ of being drawn to violent extremism”.

The current proposal only provides a rather weak and narrow non-discrimination safeguard in Recital 20, which is restricted to criminal offences. EDRi encourages the European Parliament to strengthen this provision, in line with the EU Charter and the UN’s Plan of Action against Violent Extremism leading to terrorism, which calls on UN Member States to strengthen “the rule of law, repealing discriminatory legislation and implementing policies and laws that combat discrimination, marginalisation and exclusion in law and in practice”.

EDRi’s proposal (amending the Commission’s proposal):

Recital 20
The implementation of the criminalisation under this Directive should be proportional to the nature and circumstances of each case the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discrimination.

c) Freedom of expression

The draft Directive contains provisions which can have a chilling effect on freedom of expression. In the words of the European Court of Human Rights (ECtHR), freedom of expression applies to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.

The Directive must ensure that “any restrictions on freedom of expression are clearly and narrowly defined and meet the three-part test of legality, proportionality and necessity”, as the UN Plan of Action Against Violent Extremism outlines. The Directive should help prevent abusive and arbitrary practices in Member States (see our Annex). Hence, EDRi encourages policy makers to adopt an Article which includes wording based on Recital 14 and Article 2 of the Framework Decision 2008.

EDRi’s proposal:

Article 23b (new) Freedom of expression
1. Nothing in this Directive may be interpreted as being intended to reduce or restrict the dissemination of information for the expression of an opinion. The expression of radical, polemical or controversial views in the public debate on sensitive political questions, including terrorism, fall outside the scope of this Directive and, in particular, of the definition of public provocation to commit a terrorist offence.
2. This Directive shall not have the effect to take measures in contradiction of fundamental principles relating to freedom of expression, including freedom of the press and the freedom of expression resulting from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability.

c) Emergency situations

The Directive must work for situation of crisis or emergency, in line with Article 15 of the European Convention on Human Rights (ECHR). In this sense, the UN Plan of Action on violent extremism leading to terrorism specifies that “certain rights are non-derogable even in time of public emergency which threatens the life of the nation”. As the five UN Special Rapporteurs highlighted regarding France’s situation after the Paris Attacks, “[w]hile exceptional measures may be required under exceptional circumstances, this does not relieve the authorities from demonstrating that these are applied solely for the purposes for which they were prescribed, and are directly related to the specific objective that inspired them.”

EDRi’s proposal:

Article 23c (new) Emergency situations and fundamental rights
In time of war or other public emergency threatening the life of the nation, Member States may take measures to derogate certain rights, in line with EU and International law. Such circumstances do not relieve the authorities from demonstrating that the measures undertaken are applied solely for the purpose of combating terrorism and are directly related to the specific objective of combating terrorism.

d) Effective remedies for Human Rights violations

The UN’s Plan of Action against violent extremism leading to terrorism also asks UN Member States to ensure accountability for human rights violations “through criminal procedures adhering to due-process guarantees.” This is absent from the European Commission’s proposal. EDRi’s proposal is based on the model clause proposed in the former UN Special rapporteur’s report on best practices when countering terrorism:

EDRi’s proposal:

Article 23d (new) Right to effective remedies
1. Any person whose fundamental rights and freedoms have been violated in the exercise of counter-terrorism powers or the application of counter-terrorism law has a right to a speedy, effective and enforceable remedy.
2. Member States’ judicial authorities shall have the ultimate responsibility to ensure that this right is effective.

e) Human rights safeguards for specific offences

All provisions need to be read in compliance with fundamental rights and freedoms. In addition, when referring to a concept that does not have a harmonised definition, EU institutions should provide a definition in Article 2, in order to comply with the principle of legality so that, as the UN Special Rapporteur on Human Rights and combating terrorism stated, “criminal liability is narrowly and clearly defined.”

III. Terrorist offences

• Article 2: definitions

The draft Directive contains many legal concepts which can mean different things. The Directive needs to comply with the principle of legality.

EDRi’s proposal:

Should the Directive contain legal terms which are not defined in the other provisions, Article 2 should be amended to add the appropriate definitions. For specific examples, please see our recommendations per provision in this document.

• Recital 5 and Article 3: terrorist offences

Article 3 defines the concept of ‘terrorist offences’. Recital 5 says that the Member States’ definition of terrorist offences should cover forms of behaviour “punishable also if committed through the Internet, including social media”. However, Articles 3(1)(b) and 3(2)(i) are not clear about what this means in practice.

• Recital 5

It is not clear why a reference to the Internet is needed. Criminal offences should be technology-neutral insofar as possible.

EDRi’s proposal:

Recital 5
Taking into account of the evolution of terrorist threats and legal obligations to the Union and Member States under international law, the definition of terrorist offences, including offences related to a terrorist group and offences related to terrorist activities, should be further approximated in all Member States, so that it covers more comprehensively conduct relate to in particular foreign terrorist fighters and terrorist financing. These forms of behaviour should be punishable also if committed through the Internet, including social media.

◦ Article 3(1)(b) on ‘unduly compelling a Government or international organisation ‘

Pursuant to Article 3(1)(b), an offence may qualify as a terrorist offence when it is committed with the aim of ‘(b) unduly compelling a Government or international organisation to perform or abstain from performing any act’. Notwithstanding its use in existing legislation, the use of the word ‘unduly‘ in this context is problematic, since it lacks a clear definition or legal import. An improved phrasing might refer to ‘using violence or the threat of violence to compel’, as we do not see how any non-violent attempt at influencing governmental policy could qualify as terrorism. Without such a modification, this provision risks affecting legitimate forms of protest and civil disobedience under the concept of terrorism. For instance, as the UN Human Rights Committee states and the UN Special Rapporteur on Human Rights and Countering Terrorism endorses, “no site or information dissemination system should be prohibited from publishing material solely on the basis that it may be critical of the government or the social system espoused by the government”.

EDRi’s proposal:

Article 3
1. (…)
(b) using violence or the threat of violence to compel or seek to compel unduly compelling a Government or international organisation to perform or abstain from performing any act.

◦ Article 3(2)(i)

Article 3(2) defines what ‘intentional acts’ means. EDRi considers Article 3(2)(i)’s wording is too broad and could lead to arbitrary and discriminatory abuses. EDRi suggests to bring it into line with Recital 13.

EDRi’s proposal:

Article 3
2. (…)
(i) seriously threatening to commit any of the acts listed in points (a) to (h), on the basis of objective, factual circumstances.

• Article 15: relationship to terrorist offences

If the amendments we suggest are adopted, the proposed text from the Commission appears unproblematic.

• Article 16: aiding or abetting, inciting and attempting

Article 16 is intended to prohibit ancillary offences related to terrorist offences, namely aiding, abetting, inciting and attempting. We see a significant overlap with the provisions under Title III (Offences related to Terrorist Activities), since these are also aimed at prohibiting (specific forms of) assistance for terrorist offences. It would appear that many of these offences related to terrorist activities could also be treated under the more general principles referenced in Article 16. Conversely, many related offences currently covered by Article 16 have already found more specific treatment in Title III. This confusion generated by this dual approach is best illustrated by the fact that aiding of terrorism (e.g. through financing or providing training) itself becomes a specific offence.

As a result of this extension, the Directive’s scope touches on activities with little to no direct relationship to actual terrorist acts. In the interest of legal certainty and good lawmaking, we would encourage a closer specification of the interaction between Article 16 and Title III of the Directive, with the aim of reducing overlap between these rules. In addition, Article 16(2) is redundant as Article 5 is the provision dealing with incitement to terrorism.

Therefore, EDRi proposes to delete it. In case MEPs disagree with its deletion, EDRi proposes the following alternative:

EDRi’s proposal:

Article 16
1. Each Member State shall take the necessary measures to ensure that aiding or abetting an offence referred to in Articles 3 to 8 and 11 to 14 is made punishable.
2. Each Member State shall take the necessary measures to ensure that inciting an offence referred to in Articles 3 to 14 is made punishable.
3. Each Member State shall take the necessary measures to ensure that attempting to commit an offence referred to in Articles 3, 6, 7, 9 and 11 to 14, with the exception of possession as provided for in point (f) of Article 3(2) and the offence referred to in point (i) of Article 3(2), is made punishable.

IV. Cooperation among Member States, their authorities and EU

• Information sharing about convicted individuals or suspects

EDRi agrees with the EP rapporteur’s intention in AM 17, but suggests improvements in order to comply with the principle of presumption of innocence.

EDRi’s proposal:

Recital 15c (amending the rapporteur’s proposal)*
In order to prevent and combat terrorism, a closer cross-border cooperation among the competent national and European authorities is needed with regard to expedient exchange of any relevant information from criminal records or other available sources on radicalised individuals, and in particular on individuals who are or have been subject to criminal proceedings, are suspects of a criminal offence or asset freezing. This provision is without prejudice to the [official name of police data protection Directive].

* Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 17.

• ‘Electronic evidence’

Whereas the Commission remains silent on this issue, LIBE’s Draft report contains two proposals on (undefined) ‘electronic evidence’.

Regarding AM 19 and AM 20 of the Rapporteur’s Draft Report (recitals 15e and 15f), EP’s rapporteur mentions “the issues related to electronic evidence”, but does not explain what issues she is referring to or the analysis available that demonstrate the existence of a real issue. Should policy-makers wish to include a provision on ‘electronic evidence’:

• they should first define what ‘electronic evidence’ means (Article 2);

• be future-proof, being compatible with the development of technology and innovation; and

• merge both (new) recitals.

EDRi’s proposals:

Recital 15e (new) amending the rapporteur’s proposal)*
Considering that terrorist organisations rely heavily upon various electronic tools, the internet and social media to communicate, promote, and incite terrorist acts, to recruit potential fighters, to collect funds, or to arrange for other support for their activities, the issues related to electronic evidence create challenges in investigations and prosecutions of terrorist offences. Member States should therefore cooperate among each other, notably through Eurojust, to ensure a coordinated approach for the development of any necessary, proportionate and effective measures that may prove efficient in dealing with the gathering, sharing, and admissibility of electronic evidence, in compliance with [official name of police data protection directive].

*Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 19.

Recital 15f(new) amending the rapporteur’s proposal)*

A Eurojust report of November 2014 notes that the growing sophistication and wider use of anonymisers, proxy servers, the Tor network, satellite links and foreign 3G networks create additional challenges to the gathering and analysis of electronic evidence, which are rendered even greater by the storage of data in the cloud. Member States should therefore cooperate among each other, in particular through Eurojust, to identify and remove possible obstacles that may occur in mutual legal assistance requests for electronic evidence.

*Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 20.

• Professionalism of authorities and Human Rights training

Member State authorities vested of powers to combat terrorism must have received relevant training, including training on human rights; be accountable; and be subject to judicial oversight. EDRi’s proposal is based on wording used in para. 50 of the Recommendation of the UN Secretary-General of 24 December 2015.

EDRi’s proposal:

Recital 4c (new)
Member States should strengthen the professionalism of security forces, law enforcement agencies and justice institutions; and ensure effective oversight and accountability of such bodies, in conformity with international human rights law and the rule of law. This includes human rights training to security forces including on how to respect human rights within the context of measures taken to counter violent extremism and terrorism.

IV. Internet related provisions

In general

The Commission’s Draft Directive, or indeed all the texts on the table at the moment, refer to the Internet as being negative for society. There is no mention (not even in a recital) of the essential role of the Internet in promoting and protecting Human Rights and Fundamental Freedoms within the Union and in Third Countries. EDRi thus advises the European Parliament not to harm the progress the EU has made in the protection of Human Rights online within and outside our borders.

EDRi’s proposal:

Recital X (new)
The Internet plays an essential role in promoting values of peace, tolerance and solidarity as well as promoting and protecting Human Rights and Fundamental Freedoms within and outside the European Union.

• (new) Recital 4a – Internet Referral Units

EDRi is concerned with AM 3 of the rapporteur’s draft Report and appears unsuited to this Directive: the first part (up to “jurisdictional conflicts”) does not have any obvious link with the last part of the recital. Similarly, the second half of the recital lacks clarity; it does not specify what ‘flagging’ (notifying?) of content entails, to whom it must be ‘flagged’, by whom that content would have to be removed, and under what procedure this might take place. This Directive is aimed at criminalisation of terrorism offences rather than creating a framework of law enforcement measures. The Directive’s operative part does not contain any reference to these ‘special units’ or their activities. This recital therefore bears little relevance to the instrument as a whole. We see this as being a political statement rather than meaningful legislation.

Therefore, EDRi proposes NOT to adopt it. In case MEPs disagree with its deletion, EDRi proposes the following alternative:

Recital 4b (alternative to AM 3, Rapporteur’s Draft Report)*
Certain forms of internet use are conducive toTerrorist radicalisation, enabling fanatics throughout the world to both online and offline involves radicalised individuals connecting with each other and recruiting vulnerable individuals without any physical contact whatsoever and in a manner that is difficult to trace. Every Member State should set up a special unit tasked with flagging identifying illegal content on the internet and with facilitating the investigation, detection and removal of such content. Member States should publish statistics on numbers of reports, investigations and prosecutions taken as a result of these activities. The creation by Europol of the Internet Referral Unit (IRU), responsible for detecting illegal content and supporting Member States in this regard, while fully respecting the fundamental rights of all parties involved, in particular with regard to predictability of the measures taken, represents a significant step forward in this regard. Member States’ units should also cooperate with the Union counter terrorism coordinator and the European Counter Terrorist Centre within Europol, as well as with civil society organisations active in this field. Member States should cooperate with each other and with the relevant Union agencies on these matters.

* Comments:
Parts in bold and strick-through reflect the changes introduced vis-à-vis AM 3 of the rapporteur’s Draft Report.

These changes create accountability and judicial responsibility and allow individuals to adapt their conduct to the law (predictability). If these units had the option to simply refer unwelcome content to internet providers, with no transparency regarding investigations, legal assessment or prosecutions, UN’s standards would not be complied with. As the former Special rapporteur on the promotion and protection of Human Rights and fundamental freedoms while countering terrorism stated in its report “Ten areas of best practices in countering terrorism”, “[w]here the law relating to terrorism confers discretionary powers upon public agencies, adequate safeguards, including judicial review, must exist for the purpose of ensuring that discretionary powers are not exercised arbitrarily or unreasonably.”

Intent as a minimum standard for all terrorist offences, with a high standard of proof

• Recital 13

EDRi welcomes the attempt made in Recital 13 to clarify the meaning of ‘intent’ as used in the Directive. Distinguishing terrorist offences under this Directive from innocent activities such as travelling or debating is done primarily on the basis of intent. It is therefore crucial that intent is not merely imputed to suspects, but that it is proven on the basis of objective, factual circumstances. The proposed AM 13 heightens the standard set in the initial proposal, and EDRi therefore welcomes it, seconding the EP’s rapporteur justification. However, EDRi suggests to remove ‘as much as possible’, since this means that the intention does not have to be based on objective, factual circumstances.

EDRi’s proposal (amending the Commission’s proposal):

Recital 13
With regard to the criminal offences provided for in this Directive, the notion of intention must apply to all the elements constituting those offences. The intentional nature of an act or omission may should be inferred from objective, factual circumstances.

Unambiguous and limited rules on incitement of terrorism

• Article 5: Public provocation to commit a terrorist offence

EDRi is concerned about the ambiguous phrasing and broad scope of Article 5 and its potential for abuse, as national anti-terrorist provocation rules have been abused in cases which appear to bear little connection to actual terrorist offences (see the Annex to this document). EDRi welcomes the intention of the EP’s rapporteur to restrict Article 5. However, at this stage, none of the versions of Article 5 regarding “glorification of terrorism” comply with UN.

The former Special Rapporteur on human rights and counter terrorism stated (and the current rapporteur has supported this approach) that “for the offence of incitement to terrorism to comply with international human rights law, it
(a) must be limited to the incitement to conduct that is truly terrorist in nature;

(b) must restrict freedom of expression no more than is necessary for the protection of national security, public order and safety or public health or morals;

(c) must be prescribed by law in precise language, and avoid vague terms such as “glorifying” or “promoting” terrorism;

(d) must include an actual (objective) risk that the act incited will be committed;

(e) should expressly refer to intent to communicate a message and intent that this message incite the commission of a terrorist act; and

(f) should preserve the application of legal defences or principles leading to the exclusion of criminal liability by referring to “unlawful” incitement to terrorism.”

In addition, none of the current versions of Article 5 would prevent Member States from criminalising indirect incitement. In 2008, the UN Secretary-General recommended UN Member States that “laws should only allow for the criminal prosecution of direct incitement to terrorism, that is, speech that directly encourages the commission of a crime, is intended to result in criminal action and is likely to result in criminal sanction.” This recommendation has been backed up by the UN Special Rapporteur on Human Rights and counter-terrorism’s report of 22 February 2016 .

EDRi’s proposal (amending the Commission’s proposal) is in line with UN standards:

Article 5*
1. Member States shall take the necessary measures to ensure that the intentional and unlawful distribution, or otherwise making available of a message to the public, with the clear intent to incite the commission of one of the offences listed in points (a) to (h) of Article 3(2), where such conduct, whether or not directly expressly advocating the commission of terrorist offences, manifestly causes a clear, substantial and imminent danger that one or more such offences may be committed, is punishable as a criminal offence when committed intentionally and unlawfully
2. Member States shall only allow for the criminal prosecution of direct incitement to terrorism, that is, speech that directly encourages the commission of a crime, is intended to result in criminal action and is likely to result in criminal sanction.

*Comments: On top of the comments above, EDRi deems it necessary to further clarify three of the changes:

• Intent. Article 5 must be read in conjunction with Recitals 13 and 14. In the words of the UN Special Rapporteur on Human Rights and Combating Terrorism, the liability should not be in the illegality of the content of the speech alone, but on the “speaker’s intention or the actual impact of the speech”. Otherwise, this would prevent unnecessary or disproportionate interferences with freedom of expression.

• “Unlawfully” was included in Article 5 of the Council of Europe’s Convention on the Prevention of Terrorism and also in the model clause recommended by the UN Special Rapporteur on Counter-Terrorism and Human Rights. As the latter states, without ‘unlawfully’, the Directive would be excluding criminal liability exemptions and legal defences against it.

• “Expressly or not” instead of “directly or not” (European Convention’s language). The UN Special Rapporteur on Counter-Terrorism and Human rights proposed this modification to the European Convention on Prevention of Terrorism “to prove both a subjective intention to incite as well as an objective danger that a terrorist act will be committed”, while also including “coded language”. This recommendation is a reaction to EctHR case Leroy v France (2008) and is in line with Article 12(1) of the European Convention on Prevention of Terrorism.

Incitement to terrorism and websites’ blocking and removal

• Recital 7

Recital 7 should be deleted. As the Meijers Committee stated, “this recital leads to a disproportional infringement of freedom of expression including the freedom of the press”. “Member States may interpret this as meaning that, even if there is no real danger of future offences, offence to victims and their families is sufficient reason to criminalise expressions”. In addition, it is not clear whether with this recital Member States would be criminalising individuals sharing messages or images for ‘journalistic purposes’.

With regard to AM 6 in LIBE’s Draft Report, EDRi considers Internet access restrictions and websites’ removal fall outside the scope of the Directive, which is essentially to define criminal offences (see Article 1 of the proposed Directive). In addition, this does not harmonise Member State laws. Should MEPs want to address these issues, EDRi considers AM6’s text should be improved in line with Article 52 of the Charter of Fundamental Rights.

EDRi’s proposal (amending the rapporteur’s suggestion in AM 6):

Recital 7*
The offences related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population, provided that such behaviour causes a danger that terrorist acts may be committed. To strengthen actions against public provocation to commit a terrorist offence on, and also taking into account the increased use of technology, in particular the Internet, it seems appropriate for Member States may to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be provided for by law, set by transparent procedures and provide adequate safeguards, in particular to ensure legal predictability and that restrictions are limited to what is necessary and proportionate. Such measures should be subject to periodic review, to assess if the stated goal(s) of the legislation are being achieved.

*Comments: these changes show the changes regarding AM 6 of the Rapporteur’s Draft Report.

• (new) Article 14a (AM 40 of LIBE’s Draft Report)

Restricted access to certain websites can be counterproductive, as websites can be replaced easily and rapidly, making it, at best” only a “temporary disruption”.

EDRi notes and welcomes that the provision on website blocking proposed by the EP’s rapporteur under AM 40 is largely similar to that in Article 25 of Directive 2011/92/EU (Directive on combating sexual exploitation of children), which contains reasonable wording dealing with this. However, the recital misses three things:

◦ First, it should emphasise that objectives need to be clear and in a way that these measures actually necessary and proportionate.

◦ Second, restrictions must be provided for by law (Article 52 of the Charter of Fundamental Rights) and subject to periodic review and judicial control. As the UN Special Rapporteur stated in its Report of 22 February 2016, “independent judicial recourse must be available. Laws that allow executive authorities to block websites, in the absence of any initial judicial control or ex-post facto judicial recourse may not comply with this requirement”.

◦ Third, websites’ removals and access restrictions (“blocking”) are two different things. Access restrictions should only be pursued when removals at source are not achieved.

EDRi’s proposal:

Article 14a (amending the rapporteur’s text)*
1. Member States shall take the necessary measures to ensure the prompt removal of webpages publicly inciting to commit a terrorist offence, as referred to in Article 5, hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
2. Where the measures described in Article 14a(1) cannot be achieved, Member States may take measures to block access to webpages publicly inciting to commit a terrorist offence towards the Internet users within their territory. These measures must be provided for by law, set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is demonstrably necessary and proportionate, and that users are informed of the reason for the restriction, that is subject to initial judicial control and periodic review. Those safeguards shall also include the possibility of judicial redress.

Comments: * Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 40.

Rejecting or clarifying the proposed amendments on malware and ‘malicious software’

The proposed recital 11a (AM 12) and Article 14b (AM 41) by the EP’s rapporteur on her draft report on the Directive should not be adopted for three main reasons:
 These proposals would not comply with the principle of legality, as ‘malware’ is not defined.
 Regarding the concept ‘malware for terrorist purposes’, this appears superfluous. This AM is seeking to solve a problem whose existence is not known and never been shown. To the extent it might exist, it is already criminal under the Council of Europe’s Cybercrime Convention and Directive 2013/40/EU on attacks to Information systems, so it is unclear what added value this prohibition would bring in addition to existing European legal framework.

 EDRi also has difficulties to see the value of adding ‘malicious software’ in the Directive (AM 29 and AM 30 of LIBE’s Draft Report), since these aspects are also covered in the Directive on attacks against computer system.

Accordingly, EDRi recommends not proposing any amendments neither on manufacturing or developing malware, nor on ‘malicious software’.

VI. Human rights regular review

As the UN Special Rapporteur on Counter-terrorism and Human Rights states in its report of 22 February 2016, “it is critical that States strictly monitor the human rights compliance of measures adopted to counter violent extremism [leading to terrorism], and ensure transparency in the operation of their initiatives.”

• Article 25 (transposition) and Article 26 (reporting)

Not alone the EU institutions have adopted a piece of legislation without conducting a much-needed impact assessment, but it would take at least four years for the Commission to report to the European Parliament and Member States about its assessment on the “impact and added value of this Directive on combating terrorism”. This unacceptable period of non-review could go up to five years, if the Council’s version is adopted and prolonged, particularly bearing in mind that such reports are often delayed. In addition, the Directive remains silent about the review mechanisms by Member States. This does not comply with UN standards.

In fact, the UN Secretary-General recommended UN Member States in its Plan of Action to Prevent Violent Extremism of 24 December 2015 to “review all national legislation policies, strategies and practices aimed at preventing and countering violent extremism [leading to terrorism] to ascertain whether they are firmly grounded in respect fro human rights and the rule of law, and whether they put in place national mechanisms designed to ensure compliance.” In fact, according to the former Special rapporteur on Human Rights and Counter-terrorism, the review process should comply with the following requirements:

“a) annual governmental review of and reporting on the exercise of powers under counter-terrorism laws

b) annual independent review of the overall operation of counter-terrorism laws

c) periodic parliamentary review.”

EDRi’s proposals:

Article 25 Transposition and review mechanisms by Member States
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [12 months after adoption]. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
3. Member States shall conduct annual independent reviews of and reporting on the exercise of powers under the laws falling within the scope of this Directive.

Article 26 Reporting
1. The Commission shall, by [24 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive.
2. The Commission shall, by [48 12 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the impact and added value of this Directive on combating terrorism and its impact on fundamental rights and freedoms and the rule of law. The Commission shall take into account the information provided by Member States under Decision 2005/671/JHA and any other relevant information regarding the exercise of powers under counter-terrorism laws related to the transposition and implementation of this Directive.
3. In light of the independent reports of the European Commission, Member States shall conduct parliamentary periodic reviews.

ANNEX
How rules on ‘provocation of terrorism’ threaten free speech

EDRi is concerned that the Article 5 of the proposed Directive on Combating Terrorism might lead to collateral damage by harming freedom of expression. Similar rules on ‘provocation of terrorism’ and related crimes in Member States and abroad have in practice repeatedly been misapplied to cases which have little or nothing do with any commonly-held conception of ‘terrorism’.

Criminalising speech can be dangerous, with significant risks for the freedom of expression. Such measures have affected public figures such as artists and journalists who play an integral part in public debate. They have been applied to clear cases of irony and satire. Furthermore, in some cases, links to the actual threat of terrorism are highly implausible.

At the same time, law enforcement action in such cases can have a profound effect on freedom of expression. Police interference, even when it does not lead to conviction, can ‘set an example’ and create a chilling effect, pushing others to self-censor out of fear. It should also be kept in mind that attempts to censor speech often have counter-productive effects; repressing speech, especially with false positives, can do more harm to the perceived legitimacy of government institutions than to the extremist movements which they aim to counteract. Legislators must therefore proceed with caution when attempting to criminalise speech in support of terrorism.

We provide various examples such incidents in order to illustrate the risks inherent in criminalising speech, and in order to reaffirm the need for clear, limited and specific rules with adequate free speech safeguards.

France

The French government has also criminalised speech which ‘glorifies’ terrorism. This rule has led to many prosecutions, including cases criminalising expressions on social media, but also to comments made during arrests and other interactions with police.

• One of the most egregious examples is the prosecution of a sixteen-year-old posting on Facebook, who uploaded a parody of a Charlie Hebdo comic (original and parody viewable here). The teen had no prior criminal record and, according to prosecutor Yvon Ollivier did not have a ‘profile suggesting an evolution toward jihadism’. He is one of four minors prosecuted for glorification of terrorism in France. Even an eight-year-old has been interrogated.

• Another troubling example is that of the French comedian Dieudonné, known for his controversial statements. He, too, was prosecuted for a Facebook post, after he wrote ‘Je me sens Charlie Coulibaly’. For this statement, he was received a two-month suspended prison sentence.

• In numerous incidents, the statements in question were made under the influence of alcohol. In others, those prosecuted had mental health problems or learning difficulties.
United Kingdom

In the United Kingdom, the following Tweet was considered worthy of prosecution:

‘Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!’.

The conviction of Paul Chambers for sending a “menacing” public electronic message was eventually overturned on appeal, but only after two and a half years of litigation and after having being dismissed from his job as a result. UK law enforcement has also interrogated a 10-year-old and his parents for writing in a school assignment that he lived in a ‘terrorist house’.

Finally, a case involving a four-year-old child was referred to the police because s/he drew a cucumber and subsequently referred to the drawing as a “cooker bomb” instead of a “cucumber”.

While these cases were not based on a legal prohibition on the provocation of terrorism, they do illustrate how law enforcement authorities and certain institutions are prone to overreact and harm freedom of expression in the process.

Spain

Spain criminalises the ‘glorification of terrorism’. Those convicted include:
• Two puppeteers, who were convicted for a performance in which a puppet officer held up a miniature sign falsely accusing another puppet of terrorism, using a play on words that combined Al Qaeda and the Basque Terrorist Group ETA.

• A rapper convicted and condemned for two years of prison for having composed songs that allegedly glorified terrorism.

• A rapper, who was prosecuted for his posts on Twitter.

• A 21-year-old student, who posted on Twitter inciting a terror group known as ‘the Grapo’ – even though this group is considered ‘to have long lost its operative capability’ and was last active over 25 years ago.

Outside the European Union

Incidents from outside the EU further illustrate how rules arbitrarily prohibiting speech related to terrorism can lend themselves for abuse. These are a few examples:

• In Turkey, two British journalists from the popular ‘Vice’ network were detained for ‘aiding a terrorist organisation’. Turkey has also blocked entire social media websites following terror attacks, such as when they blocked Twitter and Facebook in October 2015.
• In Jordan, over a dozen journalists and activists have been prosecuted under the anti-terror law, with one activist being jailed for five months for criticising the royal family’s support of Charlie Hebdo on Facebook.

• In Egypt, three journalists from Al Jazeera were sentenced to three years in prison for ‘broadcasting false information’ and ‘aiding a terrorist organisation’ for their reporting on the Muslim Brotherhood.

• In Cameroon, a Radio France International correspondent was prosecuted for ‘complicity in terrorism and failing to denounce acts of terror’ as an alleged accomplice of the Boko Haram group.
For more information or clarification, please contact Joe McNamee (joe.mcnamee@edri.org) and Maryant Fernández (maryant.fernandez-perez@edri.org)

Tel. +32 22742570

MEIJERS COMMITTEE : Notes on an EU Proposal for a Directive on combating terrorism

ORIGINAL PUBLISHED HERE (16 March 2016) (emphasis in the text below are added)

The Meijers Committee would like to comment on the European Commission’s proposal for a Directive on combating terrorism,1 partly in light of the proposals made in the Council’s General Approach of 3rd of March 2016 and the European Parliament’s LIBE Committee’s draft report of 10th of March 2016.

The Meijers Committee holds that the proposal is insufficiently substantiated, that it extends the scope of criminal law too far and compromises fundamental rights. 1.

The Meijers Committee wishes to express its support for the idea of reviewing existing EU criminal law instruments in the field of counter-terrorism. A review of the 2002 Framework Decision (as revised in 2008) offers an excellent opportunity to take a critical look at its provisions in light of the ambitions of the European institutions regarding a coherent criminal policy.

In this regard, the Meijers Committee recalls that in recent years the European Commission, the Council and the Parliament have clearly expressed themselves in favour of developing EU-level criteria for the criminalization of behaviour.2 The underlying idea is to create a coherent EU criminal law system that avoids unnecessary and unclear criminal law offenses in EU instruments. 2.

Moreover, the Meijers Committee wonders how the proposed directive relates to the European institutions’ laudable initiatives on de-radicalisation, disengagement and rehabilitation of (potential) ‘foreign fighters’ and returnees – e.g. the European Commission has stated in this regard that prosecution can have adverse side-effects: ‘the threat of prosecution may discourage certain individuals from returning who would otherwise be valuable sources of intelligence or be persuaded to de-legitimise terrorist groups and actively support counter-narratives among their peers. Also, if aspiring foreign fighters are likely to be prosecuted, their relatives may be more reluctant to alert the authorities to signs of radicalisation and preparation.‘3 Moreover, prisons can become breeding grounds for further radicalisation and many EU prisons are currently overcrowded. In the view of the Meijers Committee, discussions about broadening the scope of the criminal law should be fully coordinated with these meaningful initiatives in order to achieve ‘better regulation’.

3. Unfortunately, the opportunity to develop criminal law on terrorism in line with these considerations is not taken up in the current proposal. For instance, in its Conclusions on model provisions guiding the Council’s criminal law deliberations, the Council held that ‘criminalisation of a conduct at an unwarrantably early stage‘ should be avoided – yet this aspect is particularly problematic in the current proposal. It creates a far-reaching extension of the scope of Member States’ criminal law obligations in the field of terrorism that takes these obligations even further into the preparatory phase of possible harmful conduct.

4. It is notable that the European Commission has chosen not to conduct an impact assessment of the proposed directive, ‘given the urgent need to improve the EU framework to increase security in the light of recent terrorist attacks including by incorporating international obligations and standards’. The legislative process so far also gives the general impression that legislation is being rushed through, without looking at the serious societal impacts that it could have. The Meijers Committee is of the opinion that such a rushed procedure does not do justice to the importance of a balanced legal response to terrorism, especially since the proposal concerns far-reaching powers under criminal law that can be exercised at a very early stage and that can have a serious impact on people’s lives. Legislation in the field of counterterrorism (including EU legislation4 ) is all too ofen characterized by short-term thinking and a lack of legislative scrutiny, whereas the new, far-reaching powers are then retained for a considerable time, sometimes also being used outside the counter-terrorism context. According to the Meijers Committee, the European institutions should make a joint effort to avoid falling into such traps and to engage in a profound, careful consideration of these proposals and a serious investigation of the functioning of existing instruments (not being limited to operational aspects but also looking at the effects of measures on fundamental rights and possible adverse side-effects). The fact that international obligations in this area have already been adopted does not discharge the EU legislature of the obligation to make its own critical assessment of these measures, especially since these existing international obligations have been adopted without much democratic oversight and scrutiny.

5. The Meijers Committee is of the opinion that the Commission’s proposal is only weakly substantiated. It is stated that ‘More coherent, comprehensive and aligned national criminal law provisions are necessary across the EU to be able to effectively prevent and prosecute foreign terrorist fighters-related offences and to respond in an appropriate manner to the increased cross-border practical and legal challenges.’ However, the Commission provides no sources nor does it explain why the current instruments are insufficient and ineffective; neither does it give examples of situations that cannot be tackled at the present time. The proposal mentions ‘loopholes’ and ‘enforcement gaps’, but does not specify them and does not delve into the causes. It is the view of the Meijers Committee that such far-reaching proposals require a firmer basis. The focus should be on the effective use of existing powers and ways by which Member States can collaborate, e.g. in the area of information exchange, rather than creating new rules – something that is also required by the proportionality principle (art 5 TEU).

6. All EU Member States have bound themselves to the obligation to respect fundamental rights. That is also the case in regard to the implementation of obligations to criminalize behavior. It is worrying that the text of the proposed directive makes no reference to fundamental rights whatsoever (except in the preamble), whereas the Framework Decisions do. The Meijers Committee holds that the directive itself should clearly outline the obligation to respect fundamental rights. In particular, there is a risk that implementation of the measures envisaged will in practice encroach upon the right to non-discrimination by disproportionately targeting Muslims. The offenses may be neutrally formulated, but considering the reasons and objectives outlined in the explanatory memorandum, the instrument seems to be particularly geared towards jihadism. In the proposal, only recital 20 states rather weakly that implementation ‘should exclude any form of arbitrariness or discrimination.‘ The Meijers Committee proposes that the text of the directive itself provide for clear and strong guarantees against discrimination.

6a. The Council’s proposal to refer to media freedom in Article 21bis is an improvement of the Commission’s proposal. The Meijers Committee proposes to add a reference in the text to freedom of expression in general as well as other fundamental rights that are at stake, including freedom of religion, non-discrimination and freedom of movement, and to specify requirements for the restriction of these rights in the context of specific offenses. This also means that the elements of the separate offenses included should be restricted in such a way as to ensure that implementation does not risk encroaching on these fundamental rights (as specified below).

7. The broad definition of terrorism is unaltered in the proposal. Amongst other things, attacks against the military and military infrastructure of dictatorial regimes are included in the definition. In its outcome document on the 2002 Framework Decision, the Council stated that the instrument ‘covers acts which are considered by all Member States of the European Union as serious infringements of their criminal laws committed by individuals whose objectives constitute a threat to their democratic societies respecting the rule of law and the civilisation upon which these societies are founded. It has to be understood in this sense and cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring these democratic values, as was notably the case in some Member States during the Second World War, could now be considered as “terrorist” acts. Nor can it be construed so as to incriminate on terrorist grounds persons exercising their fundamental right to manifest their opinions, even if in the course of the exercise of such right they commit offences.’5 The Meijers Committee holds that this fundamental dilemma deserves renewed consideration by the European legislature and that the outcome of such considerations should be clearly laid down in the text of the directive.

7a. This definition can lead to unjust results, especially in combination with a broad array of preparatory offenses. For instance, incitement to attacks against the military infrastructure of dictatorial regimes, and glorification of such attacks, would also be prohibited. The proposed directive contains no guarantees to prevent such criminal offences from being used arbitrarily or inconsistently, whereas the risk is certainly present. 8. As indicated above, the Council (in light of the debate about criteria for criminalization) has stated that ‘criminalisation of a conduct at an unwarrantably early stage’ should be avoided; ‘conduct which only implies an abstract danger to the protected right or interest should be criminalised only if appropriate considering the particular importance of the right or interest which is the object of protection.‘6 The definition of criminal offenses should be clearly delineated, as required by the legality principle (article 49 EU Charter of Fundamental Rights). It is the view of the Meijers Committee that this also implies that the definition should be so strict that the behavior to be criminalized is not too far removed from the potential harm (from the potential terrorist attacks themselves), and such harm should actually be intended. In this regard, several proposed offenses are problematic (as indicated below). For now, it is important to note that the proposal offers unprecedented opportunities to cumulate offenses – e.g. inciting the distribution of a message to the public with the intent to incite the commission of a terrorist offense (art. 16(2) / art. 5), and inciting the financing of training for terrorism (art. 16(2) / art. 11 / art. 8). Moreover, the proposal would oblige Member States to criminalize ‘aiding and abetting the soliciting of another person to participate in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way‘ (art. 16 lid 3 / art. 6 / art. 4 sub b). This enlarges the scope of the criminal law even further and can lead to absurd situations.

8a. It is important to keep in mind that, in common with substantive criminal law, criminal procedural law in the field of counter-terrorism often also extends further into the preparative phase than ‘normal’ criminal procedural law. In the Netherlands, for instance, ‘indications’ of an offense (rather than a reasonable suspicion) are sufficient to deploy certain procedural powers. Thanks to the combination of broader substantive and procedural law provisions, the government can act at an extremely early stage. Many of the offenses in the proposed directive do indeed target acts that would otherwise be considered ‘normal’ innocent behaviour, such as taking a chemistry course or buying fertilizer. Thus, because the actus reus cannot make the difference, a person’s alleged intention (mens rea) plays an even greater role, and in the field of terrorism there is a greater risk that the authorities may derive such an intention (in part) from ideologies and/or religious beliefs. In the current societal context, that means that there is a genuine risk that Muslims will be disproportionately targeted in practice.

9. With regard to Article 2(d), the Meijers Committee wonders what is meant by a ‘structured group’ that ‘does not need to have (…) a developed structure.’

10. The proposed article 15 states that for an offence referred to in Article 4 and Title III to be punishable, it shall not be necessary that a terrorist offence be actually committed, nor shall it be necessary to establish a link to a specific terrorist offence (or, regarding articles 9 to 11, to specific offences related to terrorist activities). In the explanatory memorandum this is explained as follows: ‘For instance, for the criminalisation of the recruitment to terrorism it is not necessary that the person is solicited to commit a specific terrorist offence or that the person providing training for terrorism instructs a person in the commission of a specific terrorist offence. In the same spirit, for the criminalisation of the financing of terrorism, it is sufficient that there is knowledge about the use of the funds for purposes furthering the terrorist activities in general without there being a need to be linked to for instance a specific already envisaged travel abroad.’

The Meijers Committee is of the opinion that this addition to article 15 (which is not included in the Framework Decision) stretches the relationship between behaviour and potential harmful consequences too far; no such relationship is required at all. In fact, the Meijers Committee holds that the requirement that the behaviour in question poses a real danger of possible terrorist offences is important for preparatory offences in general. If the conduct described is capable of creating harm in exceptional situations, the prohibition should be limited to those exceptional situations. With regard to article 8 (receiving training) such a requirement is referred to in the explanatory memorandum; in article 5, a requirement to this end is laid down in the text itself. The Meijers Committee recommends, having regard to article 8 and the other offences in the directive, that the relationship between behaviour and possible harm should be more clearly expressed in the text.

11. Although it is positive that article 5 contains a ‘danger’ criterion, the Meijers Committee considers that an even stricter criterion is needed to limit the scope of the provocation offence, since the right to freedom of expression is so clearly at stake here. In its current form, the offence potentially criminalizes sympathizers with the ideology underlying terrorist groups, but who do not necessarily accept the violence as such; it could thus make non-violent resistance suspect and thereby be counterproductive. Moreover, because the definition of terrorism in the proposed directive is so broad, discussions of possible justifications for violent resistance in exceptional circumstances are also criminalised: in a free society, such debates should not be settled by criminal law. With all of the opportunities offered for the cumulation of offences, the risk of creating a ‘chilling effect’ on freedom of speech is even greater, e.g. criminalizing the financing of the propagation of such ideologies. The offense should be further restricted, e.g. by requiring a ‘serious and actual danger’ and/or as the LIBE draf report states a ‘clear and substantial danger’, or by reviving the Parliament’s proposal with regard to the 2008 revision of the Framework Decision to limit the article to ‘conduct that clearly and intentionally advocates the commission of a terrorist offence where such conduct manifestly causes a danger that such offences are committed’.

11a. The proposal is also problematic in that it explicitly criminalises indirect provocation. Especially in combination with the preamble, which states that ‘The offenses related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population’, this recital leads to a disproportional infringement of freedom of expression including the freedom of the press and should be renounced. The explanatory memorandum states that ‘Such messages and images may also include those denigrating victims of terrorism, including their families’, which makes the offence even less clear: some Member States may interpret this as meaning that, even if there is no real danger of future offenses, offense to victims and their families is sufficient reason to criminalize expressions.

The text proposed in the Council, which specifically mentions glorification of terrorism in the text of the directive, is even more problematic – as is the LIBE draf report’s addition of the words ‘or glorify’: the Meijers Committee strongly believes that these proposals should be renounced. Instead, the directive should explicitly exclude glorification or justification of terrorism from its reach, because it is particularly with these types of prohibitions that the risk of encroaching upon freedom of expression is very high. Moreover, the proposal to change the text to ‘advocates the commission of terrorist offences thereby causing a danger‘ is a significant step back in terms of freedom of expression: it could be interpreted so as to mean that advocating the commission of terrorist offenses (whether directly or indirectly, including by glorification) automatically causes a danger. This would make the ‘danger’ requirement ineffective and superfluous. The safeguard that the Council proposes in recital 20A (‘Nothing in this Directive should be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions, falls outside the scope of this Directive and, in particular, of the definition of public provocation to commit terrorist offences’) should, in the view of the Meijers Committee, be included in the text of the directive itself.

11b. The Meijers Committee further believes that the Council’s addition to recital 7 – ‘it seems appropriate for Member States to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be set by transparent procedures and provide adequate safeguards, in particular to ensure that restrictions are limited to what is necessary and proportionate’ – falls outside the scope of this instrument and creates a particularly pressing risk for freedom of expression and freedom of the internet, especially since the proposal does not oblige involvement of the judiciary in such blocking measures.

12. The proposed articles 7 and 8 refer to providing and receiving training ‘for the purpose of committing of or contributing to [in article 8: the commission of]’ one of the terrorist offences mentioned. The Meijers Committee recommends specifying what is meant by ‘contributing to [the commission of]’ these offences and why this addition is necessary. Moreover, it is advised that the text of article 8 makes it clear that active participation in the training is required and that ‘the mere fact of visiting websites containing information or receiving communications, which could be used for training for terrorism, is not enough’ as the explanatory memorandum states.

13. The need for and proportionality of the proposed new criminal offences of travelling abroad for terrorism and organising or otherwise facilitating such travel (articles 9 and 10) are not sufficiently demonstrated, also in light of existing criminal offences in the Member States and other legal options, such as taking passports.

Moreover, the Meijers Committee considers that these articles are too loosely defined for such far-reaching restrictions of the right to liberty of movement, which entails the right to leave any country including one’s own (Article 2, Fourth Protocol to the ECHR). Article 9 refers to travelling abroad ‘for the purpose of the commission of or contribution to a terrorist offence referred to in Article 3 (…)’. The wording ‘or contribution to’ makes the offence excessively broad and unclear: there is no explanation of what this could entail. Moreover, the Meijers Committee considers the criminalisation of travelling abroad to participate in the activities of a terrorist group particularly far-reaching, as the offence of article 4 in itself is already quite broad. Article 10 includes the term ‘otherwise facilitating’; according to the Commission this ‘is used to cover any other conduct than those falling under “organisation” which assists the traveller in reaching his or her destination. As an example, the act of assisting the traveller in unlawfully crossing a border could be mentioned.’ This makes the provision very broad and unclear. Although the organisation or facilitation needs to be committed intentionally and ‘knowing that the assistance thus rendered is for that purpose’, apparently there is no requirement that the organiser or facilitator has the purpose of contributing to the commission of terrorist offences.

All these elements together lead to a greatly expanded scope of criminal liability for an otherwise ordinary activity – travelling abroad. Almost everything will thus come down to the alleged purposes of the traveller, an assessment that is lef to domestic law. Some Member States will be able to interpret this very broadly, e.g. judging that travelling to a certain ‘suspect’ region will in principle be sufficient to prove a terrorist purpose.

Thus, there is a risk of reversing the burden of proof, which will prove especially problematic for humanitarian organisations and journalists. Should the offences be adopted, the Meijers Committee holds that it is at least absolutely necessary that they are limited to travelling outside the EU. Moreover, The Meijers Committee concurs with the LIBE committee’s draf report that ‘the act of travelling should be criminalised under very specific conditions and only when the intention of doing so for a terrorist purpose is proven by inferring, as much as possible, from objective, factual circumstances’; such specific guarantees should be included in the text itself.

14. The Meijers Committee is not convinced of the need to establish jurisdiction for non-EU nationals who provide training for terrorism to nationals or residents abroad, as proposed in Article 21 (1)(d). There should be particularly compelling reasons for establishing such a far reaching ground for jurisdiction, especially where offences in the preparatory stage are concerned. The Commission, in the view of the Meijers Committee, has failed to demonstrate such compelling reasons. It is also highly questionable whether this form of jurisdiction will actually be used in practice.

15. The Council proposes to include a specific provision on investigative tools. According to the Meijers Committee, this falls outside the scope of the directive. The same is true of the LIBE draf report’s proposal on ‘asset freezing’ in Article 11a. That said, the breadth of criminal procedural powers in the field of terrorism is certainly something that the European legislature should be concerned about, but not just from a law enforcement perspective; rather, the balance between effective investigations and fundamental rights requires more careful consideration. This is particularly pressing with regard to offences, such as those contained in the proposed directive, where evidence gathering may be difficult because they are committed in third countries with worrying human rights records. Moreover, the relationship between criminal (substantive and procedural) counter-terrorism law and other fields of counter-terrorism law should be borne in mind when drafing this directive. For example, some states have adopted or proposed far-reaching administrative law measures, such as removing a person’s nationality after that person has been convicted of terrorist offences (or even in the absence of a criminal conviction). According to the Meijers Committee, the European legislature should consider how the current proposal relates to such initiatives

NOTES

1 2 December 2015, COM(2015) 625 final.
2 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, 2979th JHA Council meeting, 30 Nnovember 2009; European Parliament, Resolution ‘An EU approach to criminal law’, 22 May 2012 (2010/2310(INI)); European Commission Communication ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’, 20 September 2011, (COM(2011)0573).
3 European Commission, Background document to the High-Level Ministerial Conference ‘Criminal justice response to radicalisation’, 19 October 2015, Brussels, p. 2.
4 SECILE Consortium, led by Professor Fiona de Londras, Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness. Final report summary, 2015, http://cordis.europa.eu/result/rcn/164039_en.html.
5 Outcome of the proceedings, 7 December 2001, 14845/1/01 Rev. 1, Draft Council Statement.
6 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, 2979th JHA Council meeting, 30 November 2009, par. 5.

(*) About
The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Antidiscrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation. The Meijers Committee is funded by the Dutch Bar Association (NOvA), Foundation for Democracy and Media (Stichting Democratie en Media) the Dutch Refugee Council (VWN), Foundation for Migration Law Netherlands (Stichting Migratierecht Nederland), the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF. Contact info: post@commissie-meijers.nl +31(0)20 362 0505 Please visit http://www.commissie-meijers.nl for more information.

Counter-terrorism: The EU and its Member States must respect and protect human rights and the rule of law

JOINT CIVIL SOCIETY STATEMENT (*) Brussels, 1^st March 2016.

The 2015 terrorist attacks in Paris and elsewhere – and the assertion by States that there is an elevated terrorist threat in the European Union (EU) – have led to a new set of counter-terrorism measures at both EU and national levels. These terrorist attacks are heinous criminal acts which undermine human rights. International human rights law itself requires that states must take appropriate measures to prevent and respond to acts of terrorism, in order to ensure the security and safety of the people in their territories. The undersigned organisations recall that counter-terrorism measures must always comply with the rule of law and human rights obligations under European Union and international law. Effective counter-terrorism measures and the protection of human rights are not conflicting but are aimed at overlapping, complementary and mutually reinforcing goals. In practice, widespread violations of human rights while countering terrorism have proven to be counterproductive.

The undersigned organisations acknowledge that states are facing substantial threats to the security of their populations that require effective action. However, the extent of restrictions on human rights that result or could result from adopted or contemplated security measures is significant. Transparency, information and meaningful participation of civil society are crucial to avoid excessive or other arbitrary restrictions on human rights as a result of counter-terrorism laws and policies.

An overarching concern is the fast-track procedures used by EU institutions and EU Member States authorities to adopt counter-terrorism measures, for instance in the Draft Directive on Combating Terrorism. This reduces the space for meaningful civil society participation and transparency, foreseen in EU Stakeholder Consultation Guidelines, and thus hinders accountability, which is contrary to Article 11 of the Treaty of the European Union. Adoption of emergency measures also does not allow for proper or, indeed, any impact assessments, as foreseen by the EU Better Regulation Guidelines and Better Regulation tool 24.

The shrinking space for civil society is a concerning reality not only outside the EU, but also within its own borders.

The undersigned organisations urge the EU and Member States to respect, protect and fulfil human rights and the rule of law:

The right to be free from torture and cruel, inhuman or degrading treatment or punishment.

All States must comply with the absolute prohibition of torture and ill-treatment and take effective measures to prevent any acts of torture or cruel, inhuman or degrading treatment or punishment. They must ensure that allegations of such treatment are effectively and independently investigated and the perpetrators brought to justice, and that victims have access to effective remedies and reparations, including rehabilitation. States must ensure that statements and other information obtained through torture and ill-treatment, including information obtained abroad, are not invoked as evidence in any proceedings, except against a person accused of torture.¹ This obligation includes a responsibility not to use or share torture-tainted information obtained in other States and should also cover EU agencies with cooperation agreements with third countries, such as Europol.

As a guarantee against ill-treatment within EU Member States, international fair trial rights should be respected, suspects arrested for terrorism offences should be notified of their rights effectively in accordance with international human rights law and Directive 2012/13/EU and access to a lawyer should be ensured in accordance with Directive 2013/48/EU. The important right of an arrested person to be brought promptly before a judicial authority upon arrest, as set out Article 5 European Convention on Human Rights (ECHR) and Article 9 International Covenant on Civil and Political Rights (ICCPR), that amongst other things is a safeguard against prohibited ill-treatment, should also be clearly enshrined in EU law.

No return to face human rights violations.

All removals and expulsions of persons must respect the principle of non-refoulement, meaning that nobody must be returned to a country where there are substantial grounds for believing that he/she would be in danger of being subjected to torture, ill-treatment or other serious violations of human rights. ² This principle must hold true for people convicted of terrorism offences, or who are suspected of terrorism-related activity. Diplomatic assurances, which are typically not legally enforceable and are inherently unreliable, should not be considered as sufficient protection against torture, ill-treatment, unfair trial or arbitrary detention following removal.

The right to liberty and security of the person.

Any person arrested or deprived of their liberty, including by administrative detention, must have prompt access to judicial review of detention, and regular judicial review thereafter.

All detainees at all times have the right to challenge the lawfulness of their detention through judicial proceedings. They have a right to prompt and regular access to a lawyer, and the right to inform their family of their detention. Deprivation of liberty is permissible only on the grounds envisaged by Article 5(1) ECHR.

Where the authorities possess credible facts or information giving rise to a reasonable suspicion that a person has committed an offence, they may arrest that person on suspicion of committing an offence in accordance with Article 5(1)(c) ECHR and ensure all attendant guarantees, including the right to an adversarial hearing before a court enabling the suspect to contest the reasonableness of the suspicion and ensuring their access to materials necessary for challenging detention effectively.

Proposals for administrative forms of detention based on suspicion against the person but which circumvent the protections of criminal procedure are in principle unlawful, at least in so far as the state concerned has not formally derogated from international human rights obligations, including Article 5 ECHR due to a state of emergency that threatens the life of the nation.

Detention must even then be subject to strict criteria of necessity and proportionality, be subject to judicial review and allow for access to a lawyer. Whatever the basis for detention, solitary confinement must only be imposed in exceptional cases as a last resort, for as short a time as possible and subject to independent review, only pursuant to the authorisation by a competent authority and must never be prolonged. It can only be applied in conditions that ensure the detainees rights to health, due process and protection against ill-treatment will not be violated. Effective access to legal counsel and consular services should be ensured at all times.

Right to fair trial.

Individuals suspected of terrorism-related offences should be investigated, charged and tried before independent and impartial courts within the ordinary criminal justice system. Proceedings relating to terrorism offences sometimes involve evidence obtained from overseas operations, surveillance, intelligence and military agencies, which may be relied upon to demonstrate aspects of substantive offence definitions such as the individual’s intention and their concrete participation in terrorist offences; they may also be subject to particular media scrutiny.

Such proceedings must respect international law and standards on the right to a fair trial, as protected by Article 14 ICCPR, Article 6 ECHR and supported by EU Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive 2012/13/EU on the right to information in criminal proceedings, Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings, and further Directives adopted under Article 82(2) TFEU including on the presumption of innocence, safeguards for children and legal aid.

These measures foresee no possibility of general derogation in times of emergency, and any limitations on the rights concerned must therefore be in accordance with the law, confined to what is necessary and proportionate to the legitimate aim pursued, subject to judicial oversight and must not undermine the overall fairness of the trial.

Outside the context of criminal proceedings (e.g. asset freezing, security measures imposing restrictions on individuals or organisations), the right to be heard and rights of defence should also be fully respected, in particular by enabling the person concerned to comment effectively upon the evidence which serves as the basis for the decision against them.

Definition of terrorism.

International human rights bodies have repeatedly expressed their concern that the potentially vague and over-broad scope of the definitions of terrorism in domestic law in certain jurisdictions may contravene the principle of legality and could lead to violations of human rights. Similar concerns apply to the definition of terrorism under EU law.

Member States and EU institutions should apply clear definitions of what constitutes a terrorist offence or ancillary offences of terrorism within national criminal law, to protect against arbitrary or discriminatory application.

Such definitions should ensure that concrete individual participation in intended or actual acts of terrorism is required for the offence to be committed. “Receiving training for terrorism” should be confined to receiving such training wilfully. Moreover, it is essential that offences of “receiving training for terrorism” be subject to establishing specific intent of carrying out, or contributing to the commission of the principal offence as a result of the training. In the absence of such intent, there is a risk of criminalising conduct, which lacks a sufficient proximate causal link with the main criminal offence.

It should be clear that these new criminal law provisions do not apply to conduct governed by international humanitarian law. States should give priority to fulfilling their existing international legal obligations to investigate and prosecute war crimes, crimes against humanity and other crimes under international law.

The right to non-discrimination.

Counter-terrorism policies have had a disproportionate impact on certain populations, including ethnic or religious minorities, including Muslims, people of African and Asian descent, migrants, or people perceived to be from these groups. Evidence shows the disproportionate effects on Muslim communities of the post 9/11 practices, such as racial profiling. ³

Evidence also shows that more recent European States’ policies and practices have disproportionately targeted Muslims and people perceived to be Muslim.

Ethnic profiling has been reported as on the rise in several EU member states. Intelligence services, police authorities and justice systems should be equipped to ensure fair and efficient policing and equal access to justice.

Discrimination undermines social cohesion and society as a whole, and can reinforce radicalisation and violence. Equality and non-discrimination standards must be complemented by specific policy strategies by Member States to address all forms of racism, including anti-Semitism, Afrophobia and Islamophobia. We welcome commitments made by the European Commission at the European Commission Colloquium on fundamental rights in October 2015, but encourage concrete follow-up in terms of obligations for Member States.

Freedom of expression and peaceful assembly.

Freedom of expression is often curtailed in states proposals to counter radicalisation or counter-terrorism, for instance in measures criminalising glorification of or apology for terrorism.

The proposed Directive on combating terrorism prohibits a person from threatening to commit certain acts or to aid, abet or incite someone to do so,⁴ even without any direct link to specific terrorist offences or activities in some cases.⁵The Directive should include a provision on freedom of expression, as in the Council’s 28 November 2008 Framework Decision on combating terrorism.

Further, online surveillance and limits to freedom of expression should, in line with the primary law of the EU and international law, be provided in by law, be proportionate, necessary and subject to data protection law. It would for instance be important to ensure that such restrictions are targeted and subject to judicial pre-authorisation with a requirement for reasonable suspicion. Internet companies should not be pressured into censoring online content, for example by the threat of criminal sanctions, nor should they be forced to cooperate to undermine encryption, which would actually damage security online.

Greater efforts should also be made to combat online hate speech targeting groups at risk of discrimination, with more scrutiny to ensure such efforts meet human rights criteria. Counter-terrorism measures restricting freedom of assembly should be foreseeable and transparent, limited to what is necessary and proportionate in pursuit of a legitimate aim, based on corroborated evidence, have time limits and be subject to independent or judicial review. Blanket bans on demonstrations and other peaceful assemblies should be avoided.

The right to privacy.

The proposed Directive on the long-term storage and use of Passenger Name Record (PNR) for the purpose of profiling individuals as possible serious criminals or terrorists raises serious human rights concerns. These concerns include an excessive data retention period, lack of evidence showing that these measures are effective (in fact, the collection of data on an indiscriminate and mass basis has not been shown as necessary for preventing terrorist attacks) and the high risk of discriminatory use of the data depending on the way algorithms or data analyses indicators are designed.

The undersigned organisations are further concerned by indiscriminate mass surveillance practices carried-out by some Member States. In addition, PNR and other untargeted data mining and surveillances practices can lead to discriminatory behaviour and the prohibited processing of data revealing race, ethnic origin or religion through the use of proxies.

Both in this context and in context of the wider demands from law enforcement agencies for Internet companies to arbitrarily infringe on human rights, special attention needs to be brought to the development and use of algorithms for crime-fighting purposes.

Human rights of asylum seekers and migrants.

Migration is not a crime. States must refrain from policies and rhetoric that associate asylum-seekers and migrants with the threat of terrorism, and must not use counter-terrorism and counter-radicalisation measures as an excuse for curbing commitments to migration and international protection.

Additional “targeted” border checks, proposed in the context of the reform of Schengen, are problematic because they are based on travel and personal characteristics of individuals, and run the risk of ethnic profiling. Recent proposals to revise the mandate of EU border surveillance agency Frontex, and extend its competences, strengthen the security-oriented approach of European migration policy at the expense of migrants’ human rights.

These amendments must take into account the human rights obligations of Member States and the EU and should be accompanied by adequate safeguards for the respect of the human rights of EU citizens, migrants, asylum-seekers and refugees.

Without safeguards, monitoring and training for the new EU border and coastal guards and frontline officers, risks of human rights violations are higher. Efforts should be made to restore ethnic and religious minorities’ trust in law-enforcement authorities and promote community policing, using existing best practices such as through the hiring and training of policemen/women to engaging highly diverse communities in full respect of their cultural, religious and ethnic backgrounds. Effective policing relies on trust within communities.

Freedom of movement.

Criminalising travel for terrorism, as in the proposed Directive on Combating Terrorism, has a direct impact on freedom of movement. The right to leave a country, including one’s own, should only be restricted for specific and legitimate reasons and by proportionate means and not on general assumptions. The right to re-enter your own country must never be restricted arbitrarily or disproportionately.

Proposals which would have the effect of banning citizens from re-entering their countries should not be based on general assumptions. The potential withdrawal of an individual’s ID or passport based on suspicion of radicalisation and without a judicial decision based on an explicit and reasonable set of criteria set out in the law is law is incompatible with the right to freedom of movement. The withdrawal of EU citizenship for persons convicted of terrorism-related offences could lead to statelessness and additional arbitrary penalties.

Freedom of religion or belief.

Article 18 of the ICCPR and Article 9 ECHR do not permit any limitation to freedom to hold any thought, conscience and religion or the freedom to have or to adopt a religion or belief of one’s choice. Mosques should not be closed based on their alleged radical affiliation, without clear elements pointing to the establishment of responsibility for the commission of criminal acts of any of the individuals who owned or administered them.

Proposals to separate ‘radical’ prisoners from the rest of detainees would seem difficult to implement without unjustifiably infringing on freedom of religion as definitions of “radical” are vague, and no Member State has formulated a reliable and non-discriminatory list of indicators of radicalisation.

The proposal in the November 2015 Council conclusions to “develop risk assessment tools and tools to detect early signs of radicalisation in prisons” should ensure safeguards to prevent arbitrary profiling and protect freedom of religion and non-discrimination among prisoners. Prisons need more education and other programmes and resources to fully play their rehabilitation and reintegration role. For some offenders, alternative measures to detention should be explored as a way to reduce overcrowding in prisons, reduce repeat offender rates as well as prevent further radicalisation and encourage re-integration in society. The administration must organise meetings with former detainees who have managed their integration into society.

Human rights education and social inclusion.

The reaffirmation of “EU values” in the education systems fall short of addressing social exclusion and human rights violations, and therefore do not offer a real counter-narrative to radicalisation. Human rights and the rule of law are universal values, with their basis in the Universal Declaration of Human Rights, and are not exclusive to any one region or culture. Comprehensive human rights education programmes should be available in schools, including on digital rights, equality and non-discrimination, European history and minorities’ contributions to Europe. Long-term social investment in education, housing, employment, health and social services are crucial to stop the massive disenfranchisement of sizeable parts of the population.

Counter-terrorism and human rights in external affairs.

The EU should implement the Operational Human Rights Guidance for EU external cooperation actions addressing “Terrorism, Organised Crime and Cybersecurity: Integrating the Rights-Based Approach”.

As committed to in the EU strategic framework on human rights and democracy, the EU should ensure that human rights and rule of law are fully respected in the implementation of its activities, projects and agreements and are at the centre of all EU agencies, EU programmes, legislation, policies and mechanisms.

Cooperation with third countries requires a human rights risk assessment, and the setting-up of monitoring-protection-reporting mechanisms to ensure the full protection of human rights. Countering terrorism should go hand in hand with activities ensuring the full protection of human rights, including the rights of Human Rights Defenders and with concrete measures protecting the space for civil society in regard to counter-terrorism and security issues. Failure to take such measures has contributed to increases in radicalisation and impunity.

NOTES

1.See Article 15 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Guidelines to EU policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment, General Affairs Council of 18 April 2008.
2 See Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 33 of the 1951 Convention Relating to the Status of Refugees and article 33 of the 1951 Convention Relating to the Status of Refugees.
³ From the European Network Against Racism (ENAR) Shadow reports, Open Society Foundations (OSF), Amnesty International and the European Union Agency for Fundamental Rights (FRA).
4 Articles 3(2)(i), 8 to 13 and 16 of the draft Directive on combating terrorism.
5. Article 15 of the draft Directive.

(*) Signed:

European Network Against Racism (ENAR)
Amnesty International
International Federation of Human Rights (FIDH)
International Commission of Jurists (ICJ)
Open Society European Policy Institute
World Organisation Against Torture (OMCT)
Fair Trials
European Digital Rights (EDRi)
Forum of European Muslim Youth and Student Organisations (FEMYSO)
International Federation of Action by Christians for the Abolition of Torture (FIACAT)
International Rehabilitation Council for Torture Victims (IRCT)
Association for the Prevention of Torture (APT)
European Association for the Defense of Human Rights (AEDH)

The European legal framework on hate speech, blasphemy and its interaction with freedom of expression

Nota Bene : At the request of the European Parliament LIBE committee, this study provides an overview of the legal framework applicable to hate speech and hate crime on the one hand and to blasphemy and religious insult on the other hand. It also evaluates the effectiveness of existing legislation in selected Member States and explores opportunities to strengthen the current EU legal framework, whilst fully respecting the fundamental rights of freedom of expression and freedom of thought, conscience and religion. The study also provides the European Parliament with guidelines on dealing with hate speech within the EU institutions. Link to the full study (446 pages) AUTHORS (*)

EXECUTIVE SUMMARY

Hate speech and hate crime incidents, including those committed online, are on the rise in Europe¹, despite the existence of a robust legal framework. This study provides an overview of the legal framework applicable to hate speech and hate crime, as well as to blasphemy and religious insult. It also evaluates the effectiveness of existing legislation in selected Member States and explores opportunities to strengthen the current EU legal framework, whilst fully respecting the fundamental rights of freedom of expression and freedom of thought, conscience and religion. The study also provides the European Parliament with guidelines on dealing with hate speech within the EU institutions.

Legal framework on hate speech and hate crime

At the EU level the legal framework includes inter alia: Council Framework Decision 2008/913/JHA (CFD)² (requiring Member States to penalise the most severe forms of hate speech and hate crime); and the Audiovisual Media Services (AMSD)³ and Electronic Commerce Directives (ECD)⁴ (controlling racist and xenophobic behaviours in the media and over the internet). It is important to view the EU measures aimed at addressing racism and xenophobia in the context of the broader EU legislative framework. Instruments aimed at supporting victims of crime and antidiscrimination measures are of particular relevance in this respect. These include Directive 2012/29/EU⁵ (Victims’ Support Directive) and the EU’s equality and anti-discrimination legislation (e.g. Directive 2000/43/EC⁶ (the Racial Equality Directive)). The Racial Equality Directive is complemented by other antidiscrimination legislative instruments such as Directive 2000/78/EC⁷ (the Employment Equality Directive) and Directives 2004/113/EC and 2006/54/EC⁸ (the Equal Treatment Directives). The EU also provides its support in practice by financing projects aimed inter alia at fighting hate speech and hate crime (for example under the Europe for Citizens Programme 2014-2020⁹ or the Rights, Equality and Citizenship Programme 2014-2020¹⁰).

The current study, developed on the basis of information gathered through seven national studies (Belgium, Germany, Greece, France, Hungary, the Netherlands and Sweden), has revealed some major drawbacks of the current legal framework applicable to hate speech and hate crime:

Shortcomings related to the transposition of the CFD include its incomplete transposition. Gaps in transposition mainly arise in connection with Article 1(1)(c) and 1(1)(d) of the CFD requiring the penalisation of the condoning, denial or gross trivialisation of genocide, crimes against humanity and war crimes and of Nazi crimes, respectively. To ensure effective protection against the most severe forms of hate speech and hate crime, it is recommended that the European Commission (EC) initiates infringement proceedings against Member States failing to transpose the CFD. Another issue derives from the transposition of the protected characteristics (grounds upon which hate speech and hate crime are prohibited) set out in the CFD, the AMSD and the ECD. As a general rule, Member States’ legislation refers to characteristics beyond those required by the CFD, the AMSD and the ECD. Member States have not taken a harmonised approach in this respect, thus the list of protected characteristics varies from Member State to Member State. Therefore an ambitious review of existing EU law might be necessary.

The use in practice of the CFD, the AMSD and the ECD is hindered by similar factors. Member States fail to collect sufficient reliable data on hate speech and hate crime incidents, which hinders the monitoring and assessment of the scale of the problem. This mainly results from the fact that data collection related competences are often divided between more than one authority, whose data collection efforts are not harmonised. To overcome the existing data gap, Member States with less developed or harmonised data collection methods could be encouraged to learn from Member States with good practices in place. The underreporting of hate speech and hate crime incidents by victims also hinders the understanding of the scale of the problem. Member States could be encouraged to raise awareness of the means of reporting incidents or to facilitate reporting through alternative means, such as anonymously, through the internet or victim support organisations.

The absence of shared understanding by practitioners of the applicable legal provisions seems to be an issue across the globe. The provision of clear guidance to practitioners, for example through awareness raising materials or training programmes, is therefore needed. These tools should provide practitioners with the skills necessary to duly investigate, prosecute and adjudicate hate speech and hate crime incidents.

In addition, applicable rules often fail to cover the liability of operators for the publication of hate content by bloggers or users of social media sites. The liability of bloggers and users of websites is often regulated; however these individuals are sometimes difficult to trace back, moreover it is often difficult to prove their motivation. The situation is an issue of concern given that internet remains a critical tool for the distribution of racist and hateful propaganda. To overcome the potential impunity of offenders it is recommended to regulate the liability of operators, thereby encouraging them to better control the content of blogs and social media websites. Alternatively Member States could reinforce their efforts of monitoring the content of websites. This however, should be done in a manner ensuring the sufficient respect of freedom of expression.

In most Member States, no concerns have arisen regarding the unnecessary limitation of freedom of expression by hate speech legislation, or vice versa. France constitutes an exception in this respect where debates over the borderline between the protection of human dignity and the freedom of expression have recently reignited, when the French Government announced its new campaign against online hate speech. Some considered the French measures as too restrictive of the freedom of expression¹¹. Guidance on where the borderline stands between the two fundamental rights is found in the case law of the European Courts of Human Rights (ECtHR). The ECtHR has ruled that in a democratic society, which is based on pluralism, tolerance and broadmindedness, freedom of expression should be seen as a right extending also to information and ideas that might offend, shock or disturb others. Any limitation of the freedom of expression must be proportionate to the legitimate aim pursued¹². Member States could also be encouraged to sign and ratify the Council of Europe’s (CoE) Additional Protocol to the Convention of Cybercrime¹³, which gives due consideration to freedom of expression, while requiring the criminalisation of racist and xenophobic acts committed online.

Finally, the absence of one comprehensive policy dealing with hate speech and hate crime is itself a matter that should be addressed. This could be addressed through the adoption of a comprehensive strategy for fighting hate speech and hate crime. The Strategy could define concrete policy goals for the Member States, targeting the most severe forms of hate speech and hate crime, including online crime. These policy goals could be set in light of the most important factors hindering the application of hate speech and hate crime legislation in practice. These factors, as explained in details above, include inter alia the insufficient transposition of applicable rules, the inadequate knowledge of practitioners of the rules applicable to hate speech and hate crime, the insufficient data collection mechanisms in place and the existence of severe underreporting. The Strategy should ensure the sufficient respect of freedom of expression and acknowledge that hate speech and hate crime are present in all areas of life (e.g. politics, media, employment).

Legal framework on blasphemy and religious insult Continue reading “The European legal framework on hate speech, blasphemy and its interaction with freedom of expression”

EP Study : Big Data and smart devices and their impact on privacy

FULL STUDY ACCESSIBLE HERE
AUTHORS : Dr Gloria González Fuster, (Research Professor at the Vrije Universiteit Brussel (VUB), Dr Amandine Scherrer, (European Studies Coordinator and Associate Researcher at the Centre d’Etudes sur les Conflits, Liberté et Sécurité -CCLS)

EXECUTIVE SUMMARY

EU citizens and residents and, more generally, all individuals deserving protection as ‘data subjects’ by EU law, are directly impacted by EU strategies in the field of Big Data. Indeed, the data-driven economy poses significant challenges to the EU Charter of Fundamental Rights, notably in the fields of privacy and personal data protection.

Big Data refers to the exponential growth both in the availability and automated use of information. Big Data comes from gigantic digital datasets held by corporations, governments and other large organisations; these are extensively analysed (hence the name ‘data analytics’) through computer algorithms. There are numerous applications of Big Data in various sectors, including healthcare, mobile communications, smart grids, traffic management, fraud detection, or marketing and retail (both on- and offline). The notion, primarily driven by economic concerns, has been largely promoted through market-led strategies and policies. Presented as an enabler of powerful analytical and predictive tools, the concept of Big Data has also raised numerous criticisms emphasising such risks as biased information, spurious correlations (associations that are statistically robust but happen only by chance), and statistical discrimination. Moreover, the promotion of Big Data as an economic driver raises significant challenges for privacy and digital rights in general. These challenges are even greater in a digital ecosystem with a proliferation of cheap sensors, numerous apps on mobile devices and an increasingly connected world that sometimes does not even require human intervention (as shown in the increasing development of the Internet of Things [IoT]). The flows of information on- and off line, shared and multiplied across computers, mobile devices, watches, SmartBands, glasses, etc., have dramatically increased the availability, storage, extraction and processing of data on a large scale. It has become increasingly difficult to track what is made of our data. This situation is complicated further by the wide variety of actors engaged in data collection and processing.

The numerous debates triggered by the increased collection and processing of personal data for various – and often unaccountable – purposes are particularly vivid at the EU level. Two interlinked, and to some extent conflicting, initiatives are relevant here: the development of EU strategies promoting a data-driven economy and the current reform of the EU personal data protection legal framework, in the context of the adoption of a General Data Protection Regulation (GDPR).

In order to address the issues at stake, the present Study provides an overview of Big Data and smart devices, outlining their technical components and uses (section 2). This section shows that many contemporary data processing activities are characterised by a high degree of opacity. This opacity directly affects the ability of individuals to know how data collected about them is used; it also hinders their capacity to assess and trust the manner in which choices are (automatically) made – whether, in other words, these choices are appropriate or fair. As regards smart devices, cheap sensors or the IoT, the pervasiveness of sensors and extensive routine data production might not be fully understood by individuals, who may be unaware of the presence of sensors and of the full spectrum of data they produce, as well as the data processing operations treating this diverse data. If Big Data, smart devices and IoT are often promoted as key enablers of market predictions and economic/social dynamics, data processing raises the question of who controls one’s data.

In this perspective, Section 3 presents the different EU approaches on the digital economy and the questions raised in terms of privacy and personal data protection (Section 3). This section argues that in the current context of the development of a Digital Single Market for Europe (DSM), the European Commission’s perspective is very much commercially and economically driven, with little attention to the key legal and social challenges regarding privacy and personal data protection. Even though the European Commission points out some of the key challenges of processing data for economic and market purposes (i.e., anonymisation, compatibility, minimisation), the complexity of these challenges is somehow under-estimated. These challenges can be grouped around the following questions any digital citizen may ask her/himself under EU law: which data about me are collected and for what purposes? Are data protected from unauthorised access and to what extent is control exercised upon the processing of my personal data?

Section 4 then considers these questions in the specific context of the Data Protection Reform package. Arguing that the digital citizen’s rights should be the main focus of the current debates around the GDPR, this Section underlines that Big Data, smart devices and the IoT reveal a series of potential gaps in the EU legal framework, in the following areas in particular: transparency and information obligations of data controllers; consent (including consent in case of repurposing); the need to balance public interest and the interests of data subjects for legitimising personal data processing; the regulation of profiling; and proper safeguarding of digital rights in case of data transfers to third parties and third countries.

In light of these findings, the Study concludes with key recommendations for the European Parliament and, in particular, the LIBE Committee responsible for the protection of natural persons with regards to the processing of personal data. These recommendations aim at ensuring that negotiations around the GDPR promote a strong and sustainable framework of transparency and responsibility in which the data subject’s rights are central.

In particular, the guiding principle of any exploitation of personal data should be driven by the requirement of guaranteeing respect for the Fundamental Rights (privacy and personal data protection) laid down in EU primary and secondary law (recommendations 1 & 2).

The role of data controllers in this perspective is central as they are legally required to observe a number of principles when they process personal data, compliance of which must be reinforced. The degree of information and awareness of data subjects must be of prime concern whenever personal data processing takes places, and the responsibility for protecting Fundamental Rights should be promoted along the data production chain and gather various stakeholders. Furthermore, the GDPR should ensure that individuals are granted complete and effective protection in the face of current and upcoming technological developments of Big Data and smart devices (recommendation 3).

The GDPR currently under discussion should in any case not offer less protection and guarantees than the 1995 Data Protection Directive, and users should remain in complete control of their personal data throughout the data lifecycle.

Finally, effective protection of individuals cannot be guaranteed solely by the adoption of a sound GDPR. It will also require a consistent review of the e-Privacy Directive (recommendation 4), an instrument that not only pursues the safeguarding of personal data protection but, more generally, aims to ensure this right and the right to respect for private life.

How the EU “legislative triangle” is becoming a “Bermudes, triangle “…

by Emilio De Capitani

According to several scholars the Lisbon Treaty has strengthened the implementation of the democratic principle in the EU as well as the framework for participative democracy. In theory with entry into force of the Charter the EU has become more accountable to its citizens and there has been a clear improvement of the legal framework for EU legislative and non legislative activity. Even if not perfectly sound) there is now a clear definition of what should be considered of “legislative” nature and there is now a clear obligation (at primary law level) to debate publicly both in the Council and in the European Parliament.

Needless to say, the latter has been for years the champion of legislative and administrative transparency not only in the citizens interest but also in view of the definition of its own marge of maneuver during the negotiations with the Council. This former EP attitude was not particularly appreciated by the Council and the Commission when in 2001, before Lisbon, the three institutions negotiated the first EU legislation in this domain. (Regulation 1049/01). However at the time it was easy to say that time was needed to promote open debates and votes in the Council and in the Commission because it would had required a change of culture in an institution mainly structured as a bureaucratic machinery (the Commission) or in an other framed by a diplomatic approach (the Council).

Five years after Lisbon such a change of culture in the Council and the Commission is it under way or is the other way round for the EP?

Have a look to the exchange of messages below and make your own opinion. The issue is still pending but risks to have some interesting developments… Continue reading “How the EU “legislative triangle” is becoming a “Bermudes, triangle “…”