Federico Lenzerini

Organisation for Security and Cooperation in Europe (OSCE)

INTRO: The OSCE is an intergovernmental organisation with 57 member states. Inspired by the CSCE Helsinki Final Act (1975) and the Charter of Paris for a New Europe (1990), it deals comprehensively with a wide range of issues relating to three dimensions of international and regional security: (1) politico-military, (2) economic and environmental, and (3) human aspects. All decisions are taken by consensus but are not legally binding. In 2010, the OSCE member states adopted the Astana Commemorative Declaration which was considered a significant step towards the commitment of the partners for a ‘comprehensive, cooperative, equal and indivisible security, which relates the maintenance of peace to the respect for human rights and fundamental freedoms, and links economic and environmental co-operation with peaceful inter-State relations’.

Across the OSCE region, the organisation through its institutions and field operations is engaged in projects on the rights of minorities, rights of Roma and Sinti; rights of displaced persons; freedom of media and media pluralism; political participation; education; →housing; civil registration; and elimination of racism, →discrimination, xenophobia, anti-Semitism and intolerance against Christians and Muslims. Respect for human rights and democracy is a key part of the OSCE’s agenda.

INSTR: The OSCE has established institutions and instruments that contribute to the monitoring of the human rights situation in all 57 participating countries:

(1)The OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) is mandated to ensure ‘full respect for human rights and fundamental freedoms, to abide by the rule of law, to promote principles of democracy and ... to build, strengthen and protect democratic institutions, as well as promote tolerance throughout society’ (Helsinki Final Act). The ODIHR inter alia observes elections, facilitates democracy assistance projects in the OSCE region, monitors judicial independence, promotes freedom of religion or belief through legal reviews and other activities of ODIHR’s Panel of Experts on Freedom of Peaceful Assembly; assists in the capacitybuilding of human rights defenders; provides human rights education and training; promotes the rights of →Roma and Sinti through the ODIHR’s Contact Point for Roma and Sinti Issues, and organises the annual OSCE Human Dimension Implementation Meeting which reviews states’ policies and practices with regard to human rights.

(2)The OSCE’s High Commissioner on National Minorities (HCNM) is an ‘instrument of conflict prevention at the earliest possible stage’. The HCNM issues recommendations and offers context-specific advice in order to avoid or reduce tensions related to →national minority issues which could develop into conflict, i.e. respect for minority languages, the responsibility of states to offer opportunities to minorities to learn the official languages, minority representation at national, regional and local levels as a matter of good governance and good practices on integration, social cohesion and intercultural awareness.

(3)The Special Representative and Co-ordinator for Combating Trafficking in Human Beings assists the OSCE member states in developing and implementing effective policies on corruption and crime control; discrimination and inequality issues; and migration.

(4)The Representative on Freedom of the Media monitors media developments and violations of freedom expression across the OSCE region (i.e. →journalists prosecuted for their professional activities); reviews media regulation and legislation and promotes Internet →freedom of expression.

REFERENCES:

www.osce.org (accessed 06/2016).

Kalliopi Chainoglou

Parody

DEF: Parody is generally defined as an artistic composition in which the main characteristics of a particular work are exaggerated or applied to an inappropriate subject, especially for the purposes of ridicule. The essential elements of parody are thus its imitative character and the satirical or comical effect. In the European legal framework, these elements were confirmed by the CJEU judgment in the [DECKMYN, 2014] case, which also defined parody as an autonomous concept of EU law. The ECtHR noted that parody is a form of artistic expression that, by its features of exaggeration and distortion of reality, naturally aims to provoke and agitate [SOUSA GOUCHA, 2016].

INSTR: Parody, as exercise of the fundamental right to freedom of expression (Article 10 ECHR and Article 11 EU Charter of Fundamental Rights), is particularly relevant in connection to copyright (Article 1 of Protocol 1 ECHR and Article 17 of the Charter) and respect for personal and private life (Article 8 ECHR and Article 7 of the Charter). None of these being absolute, a fair balance has to be struck by the national authorities between the conflicting rights. For example, in EU legislation, parody is one of the optional exceptions on copyright, contained in Article 5(3)(k) of the InfoSoc Directive, but its application has to strike the fair balance between the author’s rights and freedom of speech. As far as the right to respect for personal and private life is concerned, the ECtHR has stated that, when balancing it against the right to freedom of expression, one has to bear in mind that there is no hierarchical relationship between the two rights, and, for example, an obligation to protect one’s reputation may arise where the statements go beyond the limits of what is considered acceptable under Article 10 [SOUSA GOUCHA, 2016]. It also introduced the criterion of the reasonable reader relating to issues of satirical material [NIKOWITZ AND VERLAGSGRUPPE, 2007].

CASES: ECtHR stated that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ [NILSEN AND JOHNSEN, 1999]. Any interference with the right to freedom of expression has to be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the ECHR: legal, necessary and pursuing a legitimate aim. However, not being an absolute right, freedom of expression has to be always weighed against protection of general and particular interests and rights. This balancing exercise has to be done by the national authorities on a case-by-case basis, taking into consideration all the circumstances. For example, the ECtHR found that it is not sufficient to justify a restriction to one’s artistic freedom of expression solely on the basis that a copyright law provision was infringed [ASHBY DONALD, 2013] and that a certain degree of exaggeration or even provocation is permissible for the press, especially when it concerns a question of public interest [KULIS AND RÓZYCKI, 2009].

VIEWS: Most authors argue that the legitimacy of parody is based on the principle of freedom of artistic expression. Some view copyright as a restriction on this freedom, in the sense that it can restrict the use and distribution of cultural goods and information products (Vorhoof, 1997). In this respect, some authors tend to see in a recent CJEU judgment [JOHAN DECKMYN AND VRIJHEIDSFONDS, 2014] a first attempt of the European jurisdiction towards a de facto harmonisation of moral rights across Europe (Rosati, 2015).

CONCL: The satirical genre being by definition excessive, it may seem difficult to fix limits between freedom of the press and abuses of the rights of third parties. However, excessive satirical actions cannot avoid civil responsibility (e.g. for defamation). The border between satirical genre and third parties’ rights remains at the discretion of courts who will decide in favor of any of the conflicting rights involved, without ruling on the good or poor taste of the contentious artwork. Both the CJEU and the ECtHR judgments provide some guidance for courts to operate this balancing test, by introducing criteria for examining the proportionality of the different measures taken at national level to protect one or the other of the conflicting rights. If, for example, CJEU judgments on matters of copyright are read in conjunction with ECtHR judgments on freedom of expression and respect for private life, national authorities have enough guidance for correctly applying the proportionality test. When deciding on the conflicting rights, national authorities enjoy a fairly large margin of appreciation (depending on the content), the only condition in order to avoid arbitrariness being to bear in mind that there is no hierarchy between the different rights at stake. Fairness of such a test implies, for example, a certain predictability of the outcome, by establishing at national level a clear set of criteria like the ECtHR did in [AXEL SPRINGER, 2012], in balancing Articles 8 and 10 of the ECHR. It remains to be seen if and how national authorities will set such criteria, including through case law.

REFERENCES:

Directive No. 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society.

Michaux, Benoît: La bande dessinée et le droit des tiers. Mais quelles sont les limites à la liberté de création?, in Droit d’auteur et bande dessinée, Bruxelles: Bruylant (1997).

Rosati, Eleonora: “Just a laughing matter? Why the decision in Deckmyn is broader than parody”, 52 Common Market Law Review (2015)511.

Voorhoof, Dirk: “La parodie et les droits moraux. Le droit au respect de l’auteur d’une bande dessinée: un obstacle insurmontable pour la parodie?”, in Droit d’auteur et Bande dessinée, Bruxelles: Bruylant, (1997).

AHMET YILDIRIM v. TURKEY (ECtHR 18/12/2012, 3111/10).

ALVES DA SILVA v. PORTUGAL (ECtHR 20/10/2009, 41665/07).

ASHBY DONALD AND OTHERS v. FRANCE (ECtHR 10/01/2013, 36769/08).

AXEL SPRINGER AG v. GERMANY (ECtHR 07/02/2012, 39954/08).

JOHAN DECKMYN AND VRIJHEIDSFONDS VZW v. HELENA VANDERSTEEN AND OTHERS (CJEU 03/09/2014, C-201/13).

KULIS AND RÓZYCKI v. POLAND (ECtHR 06/10/2009, 27209/03).

NIKOWITZ AND VERLAGSGRUPPE NEWS GMBH v. AUSTRIA (ECtHR 22/02/2007, 5266/03).

NILSEN AND JOHNSEN v. NORWAY (ECtHR 25/11/1999, 23118/93).

SCARLET EXTENDED SA v. SOCIÉTÉ BELGE DES AUTEURS, COMPOSITEURS ET ÉDITEURS SCRL (SABAM) (CJEU 24/11/2011, C-70/10).

SOUSA GOUCHA v. PORTUGAL (ECtHR 22/03/2016, 70434/12).

Geanina Munteanu

Participation in Cultural Life

DEF: The right to participate in cultural life is double-faceted, similar to a great number of other human rights. There is, on the one hand, the negative right to participate in cultural life which entails the freedom to participate without interference from the state. On the other hand, there is the positive side of this right, which entails positive obligations for the state such as the obligation to develop →cultural policies aiming at broadening access and participation in cultural life.

INSTR: At the international level, the most specific formulation of the right to participate in cultural life can be found in Article 27 of the UDHR and Article 15, 1, a), of the UN International Covenant on Economic, Social and Cultural Rights. This last provision reads as follow: ‘The States Parties to the present Covenant recognise the right of everyone [...] to take part in cultural life’. Originally, the right to participate in cultural life, at the international level, had been conceived essentially as a freedom to participate in cultural life and as a right to access the set of major artworks of a given community. The legal sources of this human right are also rooted in international and regional legal instruments on cultural policies. The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, for instance, embodies explicit references to fundamental rights such as the right to participate in cultural life as requirements, but also as limits to cultural diversity.

The ECHR does not clearly recognise a right to participate in cultural life. The Charter of Fundamental Rights (EU) limits the benefit of the right to participate in cultural life to the elderly (Article 25). Within the European legal space, a short review of national Constitutions shows that only those in Belgium and Portugal fully recognise a right to participate in cultural life. Other Constitutions either limit themselves to the recognition of a right to access to culture (e.g. in Poland, the Czech Republic, Romania or Slovakia), to the recognition of artistic freedom (almost all European Constitutions) or to the protection of minority cultural rights (e.g. in Austria, Estonia or the FYR of Macedonia).

CASES: The interpretation of the right to participate in cultural life has evolved significantly in the last decades under the actions of the UN Committee on Economic, Social and Cultural Rights (CESCR) and regional jurisdictions. Article 15 of the ICESCR was firstly constructed as a right to participate in the diversity of cultural life, before being interpreted, in some statements of expert bodies and commentators, as a right to cultural identity (notably the General Comment no. 21 of the CESCR). This interpretation of Article 15 as a right to cultural identity remains uncertain: in its Concluding Observations, the Committee recommends that states parties take appropriate measures to protect the general capacity of minorities and indigenous groups to maintain and practice their way of life by referring itself to a combination of different provisions, rather than on the sole basis of Article 15 ICESCR. Still at the international level, it is striking to note that, despite the multiple elaborations on this human right, the invocation of the right to participate in cultural life never played a decisive role in international case law.

At the regional level, this right was at the centre of a case decided by the African Commission on Human Rights [ENDOROIS, 2010]. As regards the ECtHR, it took up some of the dimensions of the right to participate in cultural life by recognising the freedom not to suffer from any interference in accessing, or participating in, cultural life [ADKAS v. TURKEY, 2010], artistic freedom [since MÜLLER v. SWITZERLAND, 1988] and the freedom of association in the cultural sector [GORZELIK AND OTHERS v. POLAND, 2004]. The Court also protects cultural interests by integrating cultural considerations in the interpretation of restrictions to the right to property [e.g. BEYELER

v. ITALY, 2000].

VIEWS: Firstly, a converging opinion in the literature is that the interpretation of the right to participate in cultural life has moved towards a right protecting cultural identities at the international, national and regional levels. Clearly, a change in the interpretation of the word ‘culture’ in the international cultural rights discourse is now widely recognised. Some authors note that states regularly report to the CESCR information concerning the protection of minorities’ cultural identities (beyond their cultural practices) and ways of life.

Secondly, some authors actively participated in the drafting of General Comment no. 21 and/ or promote a broad, anthropological conception of cultural life which constitutes the object of Article 15 (1) (a) of the ICESCR. These authors form part of a group known as ‘Groupe de Fribourg’, an academic association which aims at promoting the advancement of cultural rights. They adopt a normative point of view on this right, promoting a certain vision of it, which is mainly in line with communitarian theories.

Thirdly, other studies examine the evolution of the interpretation of Article 15 (1) (a) of the ICESCR and try to identify the normative content of that right. They discuss what could be a legal definition and legal regime of that right. In this context, some authors focus on a potential interaction between the right to participate in cultural life and copyright or with ICT and attempt to identify ethical foundations of the right. As well, some authors try to unravel economic and social issues that certain soothing discourses on this human right might obscure (e.g. inequalities, cultural homogenisation).

Finally, some authors analyse the influence of EU law or of other legal orders (like that of the WTO) on the recognition, protection and promotion of the right to participate in cultural life. They try to explain the following paradox: While the right to participate in cultural life has been the subject of much attention and elaboration in discourses (law in books), it had almost no effect in legal practice (law in action). They try to adopt an analytical insight and to explain the link between the broadness of the current definition of the right and its qualification as a ‘soft law’ instrument by the vast majority of the legal doctrine.

CONCL: It can be said that there are two different rights to participate in cultural life: The first one is a right to ‘ways of life’, a right to ‘cultural identity’, whose broad object has not yet been fully defined, and whose scope remains uncertain – as are its legal and political effects. This ‘right’ appears sometimes in the form of a principle of interpretation: the idea would be to interpret every human right ‘culturally’. It draws attention to the situation of minorities of autochthonous peoples but also to all distinct ‘ways of life’.

The second right is a distinct human right to participate in a diverse cultural life. This implies multiple, precise prerogatives: freedom of artistic and creative expression; the right to conservation, development and diffusion of the diversity of cultural heritages and expressions; the right to access to cultural life and cultural information; the right to actively contribute to the diversity of cultural life; freedom of choice (the possibility to choose to participate or not to participate in cultural life, and also the choice to determine which forms of cultural life to be involved in); the right to participate in decision-making in cultural matters (this is the procedural facet of the right to participate in cultural life) and non-discrimination in participation in cultural life. This second right to participate in cultural life is intimately bound with cultural democratisation / democracy policies and cultural diversity. It is more linked with the fight against inequalities and with questions raised by cultural policies.

REFERENCES:

Bidault, Mylène: La protection internationale des droits culturels, Brussels: Bruylant (2010).

Donders, Yvonne: Towards a Right to Cultural Identity?, Antwerpen: Intersentia (2002).

Romainville, Céline: Le droit à la culture, une réalité juridique. Le régime juridique du droit de participer à la vie culturelle en droit constitutionnel et en droit international, Brussels: Bruylant (2014).

Romainville, Céline: ‘The right to participate in cultural life under EU law’ 2 European Journal of Human Rights/Journal Européen des droits humains (2015) 145.

Saul, Ben, Kinley, David, et Mowbray, Jaqueline: “Article 15: Cultural Rights” in Ben Saul, David Kinley, and Jaqueline Mowbray (eds.), The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford, Oxford University Press (2014) 1175.

Stamatopoulou, Elissavet: “Monitoring Cultural Human Rights: The Claims of Culture on Human Rights and the Response of Cultural Rights” 34 Human Rights Quarterly (2012) 1170.

AKDAS v. TURKEY (ECtHR 16/07/2010, 41056/04).

ENDOROIS case: Centre for Minority Rights Development (Kenya) and Minority Rights Group International On Behalf of ENDOROIS WELFARE COUNCIL v. KENYA, 276/2003 AHRLR 75, 04/02/2010.

http://www.ohchr.org/EN/HRBodies/CESCR/Pages/ContributionsDGD2008.aspx (Background papers of experts for the General Discussion Day on the Right to participate in cultural life at the UN CESCR) (accessed 10/2015).

Celine Romainville

Peoples’ Rights

DEF: The term ‘peoples’ rights’ refers to certain rights recognised by international law to pluralities of individuals considered as collectivities, due to their common characteristics and/ or collective self-identification. Peoples’ rights are intended to be enjoyed collectively and refer inter alia to the following rights to: exist, self-determination, peace, security, development, land, natural resources, health, environment and culture. Such rights are inherent and complementary to individual human rights. Yet, they are also often perceived as undermining or colliding with other human rights.

INSTR/CASES/VIEWS: Although international law does not define ‘peoples’, it has recognised various rights in favour of pluralities of individuals, considered and/ or self-identified as wholes. The equal right to self-determination is primordial to peoples’ rights. Incorporated into the UN Charter (Articles 1 and 55), enshrined in the ICCPR (Article 1) and ICESCR (Article 1), and developed during the era of decolonisation, entails the right of every people to freely decide on its sovereignty and choose its international status. Self-determination, mostly seen in political terms, has gradually extended to other dimensions of peoples’ existence, including the right to peace and free pursuit of economic, social and cultural development. Such rights, labelled as ‘third-generation human rights’ (Vasak, 1984), are enumerated, inter alia in the Algiers Declaration of the Rights of Peoples (1976), UNGA Declarations on Right of Peoples to Peace (1984) and on the Right to Development (1986). On the level of treaty law, peoples’ rights are enshrined in the ACHPR (1981), to a degree not matched by other binding international human rights law instruments. Alongside the right to selfdetermination, the ACHPR recognises peoples’ rights to: equality, existence, free disposal of their wealth and natural resources, economic, social and cultural development, peace and security and ‘a generally satisfactory environment’. Thus, the ACHPR positions peoples’ rights as inherent and complementary to individual human rights, representing distinct, but inter-linked human aspirations and objectives (Viljoen, 2012). The notion of peoples’ rights is sometimes perceived as losing importance in the current post-colonial and post-Cold War reality, due to their conceptual vagueness and non-justiciability (Alston, 2001). The right to self-determination of peoples is generally treated as an unenforceable right under international human rights monitoring regimes. In particular, the HR Committee does not deal with collective claims to the right to self-determination, under Article 1 ICCPR, brought pursuant to individual communications procedure (LUBICON LAKE BAND, 1990). The neutralisation of peoples’ rights is also attributed to other factors: the end of most socialist regimes, that championed collective rights at the expense of individuals’ rights, phenomenon of globalisation, development of specific groups-oriented legal regimes (national minorities and indigenous peoples). Indeed, the notion of peoples’ rights seems today to float towards the expanding realm of collective rights, encompassing community and minority rights. Among collective rights, cultural rights are seen as fundamental for determining the ‘self’ of a given group or community. In fact, the CESCR, while dealing with collective aspects of the right of everyone to take part in cultural life (Article 15 ICESCR), has referred to certain well-defined communities: indigenous peoples and minorities (CESCR, 2009), rather than to ‘peoples’ in general. Importantly, the collective cultural dimension may affect the understanding and realisation of particular individual human rights within a given societal and legal context, as evidenced the jurisprudence of the IACHR and AfComHPR. Thus, the recognition and enforcement of collective cultural rights may contribute to maximising the effectiveness of human rights standards (Lenzerini, 2014). Collective rights and individual rights are usually mutually supportive, although in certain circumstances some antagonism between them may arise, especially between individual and collective cultural rights.

CONCL: The notion of peoples’ rights is inherently tied to self-determination. Yet, both terms pose serious questions as to the catalogue of entities, other than states, who can be considered ‘peoples’ and as to exact content and form in which the right to self-determination can be exercised. The concept of peoples’ rights may also refer to other distinct rights, linked to self-determination, and enjoyed by a plurality of persons as a whole. Today the collective dimension of the right to culture is increasingly recognised as necessary for human well-being, and thus important in interpreting and realising other human rights. Arguably, the notion of peoples’ rights in relation to culture seems to be associated with collective cultural rights and their role in preserving, enjoying and transmitting cultural identity and cultural heritage of a given community to future generations.

REFERENCES:

Alston, Philip (ed.): People’s Rights, Oxford: Oxford University Press (2001).

CESCR: “General Comment No. 21”, UN Doc. E/C.12/GC/21 (2009).

Crawford, James R. (ed.): Rights of Peoples, Oxford: Clarendon Press (1988).

Lenzerini, Federico: The Culturalization of Human Rights Law, Oxford: Oxford University Press (2014).

Paupp, Terrence E.: Redefining Human Rights in the Struggle for Peace and Development, New York: Cambridge University Press (2014).

Vasak, Karel: “Pour une troisième génération des droits de l’homme”, in Christophe Swinarski (ed.) Essays on International Humanitarian Law and Red Cross Principles inHonour of Jean Pictet, Leiden–Boston: Nijhoff, (1984).

Viljoen, Frans: International Human Rights Law in Africa, 2nd edn., Oxford: Oxford University Press (2012).

LUBICON LAKE BAND v. CANADA (HR Committee (1990), CCPR/C/38/D/167/1984).

Andrzej Jakubowski

Pornography / Obscenity

DEF: Pornography is a concept largely found in practically all contemporary legal traditions, often addressed as ‘obscenity’ in common law systems. The first usage of the word pornography (from Greek πόρνη, a prostitute, and γράφειν, to write or to record) dates back to a French novel of the 18th century about prostitution (Rétif, 1769). Yet gradually the meaning of this term evolved towards the portrayal of various sexual subject matters meant to incite sexual arousal. The judicial legacy of anti-erotic→censorship in Europe is a genetic offspring of the Judeo–Christian ethics within legal reasoning, with its fear of images embedded in various religious interpretations of the Second Commandment (Belavusau, 2010). This partially explains why most forms of contemporary censorship of pornographic expression are focused more on imaginary expression (pictures, movies, illustrations, etc.) rather than on written forms of sexual expression, e.g. in books (Adler, 2012–13).

Historically there have been twomajor modes of dealing with the sexual: ars erotica and scientia sexualis (Foucault, 1976). In the Greco–Roman world and in pre-modern societies of China, Japan and India, for example, sexuality was conceived as an ‘ars erotica’ (erotic art) where sex is apprehended as a special creative experience, i.e. not something dirty and shameful. Western society, to the contrary, constructed what Foucault called ‘scientia sexualis’ (the science of sexuality). Its original 17th century conception is based on a confession. A fixation with finding out the ‘truth’ about sexuality arises, a truth that is to be confessed and kept censored. This mode of censoring historical artefacts has influenced the 19th century’s rise of museums and special secrete sections in those museums displaying erotic art (Walter, 1996).

HIST/INSTR: Initially, pornography was a distinctly European concept shaped by two major traditions: continental (in France) and common law (where it has been referred to under the tag of obscenity, in the British Empire). Roman law supplied a notion of boni mores (‘good morals’) that played its special role in contractual obligations and was substantially different from contemporary moralistic connotations. The French Civil Code of 1804 has initially incorporated that contractual terminology of bonnes moeurs. In 1810, France adopted its Criminal Code where the notion of bonnes moeurs was borrowed from private law into public law and underwent a significant semantic mutation, meant to limit the proliferation of pornographic literature. Likewise, the first restriction on the law of the freedom of press in France became an offence of ‘outrage aux bonnes moeurs’ (1882), a notion which migrated afterwards into criminal legislation or doctrine in most continental legal traditions, including German: gute Sitten, Dutch: goede zeden, Italian: buon costume, etc. In 1857, Britain adopted its first Obscene Publication Act that survived two modifications (1959 and 1964), and is still in force in England and Wales. The Act became the first piece of legislation enabling police constables to seize obscene material and seek its destruction before magistrates, thus affecting the trade in pornography. This ‘English’ concept of ‘obscenity’ afterwards entered all common law traditions (USA, Canada, Australia, India, etc). Thus, the notion of pornography (or obscenity) was spread to the rest of the world’s legal systems through European colonial law in the 19th century, affecting non-Western legal traditions in Asia and Africa.

On the international level, two major instruments have been adopted in the 20th century: The Agreement for the Suppression of Obscene Publications (1910) and the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications (1923). The ‘gravament’ of the offence under the 1923 Convention on the trade of pornography is the distribution across national boundaries. This offence is generally considered to be in desuetude and only a few states have remained bound by the Convention on the subject. Article 19 ICCPR (1966) contains a restriction on freedom of speech for the protection of ‘public morals’. European law has also largely incorporated the continental legal clause on ‘public morality’, which penetrated the language of international treaties as an exception to commercial and artistic freedoms. In particular, Article 10 ECHR mentions ‘protection of morals’ as a plausible ground for restrictions on free speech. Likewise, Article 36 TFEU permits restrictions on free movement of goods justified on the grounds of ‘public morality’.

CASES: The ECtHR has a relatively rich body of case-law on pornography, in particular in the context of artistic expression. Most of these cases have been dealt as a matter of potential violation of freedom of expression and have been adjudicated, respectively, on the basis of Article 10 (2) ECHR. The Court has had a tendency to largely leave the decision on qualification of morality and public outrage to the →margin of appreciation ofMember States [HANDYSIDE, 1976; MÜLLER, 1988; VEREINIGUNG BILDENDER KÜNSTLER, 2007]. The position of the Court seems to differ with regard to situations when a piece of art enjoys a longstanding recognised acceptation, like for example, in a case concerning publication of an erotic novel by G. Apollinaire in Turkey [AKDAŞ, 2010]. The Court noted that there is no unanimity in the legal and social order of various European states on the issue of obscenity. Yet it also established that a hundred years had passed since Apollinaire’s book’s first publication in France. Nowadays, therefore, the book had acquired a wide recognition in many countries and undoubtedly constitutes part of the European literary heritage (para. 30 in AKDAŞ, 2010). In contrast, the CJEU has fostered an entirely moral-neutral legal position on the trade of pornographic goods in the EU [HENN & DARBY, 1979; CONEGATE, 1986; EROTIC CENTER, 2010]. It has advanced a flexible internal market with free movement of sexual goods following liberalisation of sexuality in EU states, with an emphasis on the principle of mutual recognition (Belavusau, 2015).

VIEWS: There is a long-standing debate on the permissibility of pornography in the public space. Censorship of pornography unavoidably raises problems of incompatibility with freedom of – in particular, artistic and scientific – expression, as well as with an emancipated pursuit of individual sexuality. Liberal scholars generally challenge the wide ban on obscene expression, advocating a possibility of moral choices, life styles and, ultimately, opposing the arguments restricting the pursuit of happiness, pleasure and individualistic conceptions of self (Schroeder, 1938; R. Dworkin, 1986; Sadurski, 1996; Koppelman, 2008). The adversaries of pornography refer to a number of alternative arguments. Conservative opponents invoke family values, protection of public morality and minors, along with their freedom of religion, as a defence for restrictions (Guyenot, 2000; Shytov, 2005). Radical feminist scholars often portray pornography as a visualized form of patriarchy and implicit rape of the female subject for the pleasure of men (A. Dworkin, 1991; Mackinnon, 1993). In contrast, the so-called ‘pro-sex’ feminists, see a liberating force in pornography as away for a general sexual emancipation (Willis, 1981; Benjamin, 1983, Carol, 1994). These two camps have been distinctly represented in American feminist jurisprudence, leading to the so-called ‘feminist sex war’ in the 1990s when several US states tried to establish anti-pornography ordinances.

CONCL: Pornography is a distinctly Western concept, with its roots in Judeo–Christian censorship of images, culture of ‘secrete museums’ and 19th-century codifications in France and the British Empire. Through colonial systems, this Western concept has spread to the rest of the world. Likewise, it has entered the language of both international and European law. Regulation of pornography remains a hotly contested area, with various cultural artefacts (from Ancient Greece, Rome, India, China, etc.) to be easily classified as pornographic according to the prudish perceptions of nudity and sexual intercourse. Although equally problematic and contested for a number of reasons, a more general consensus appears to exist with regard to the censorship of paedophile pornography, extreme violence and cruelty towards animals. Various countries continue to abuse the restriction on pornography as a pretext for political censorship; restriction of art; protection of a dominant religion; suppression of women and sexual minorities.

REFERENCES:

Adler, Amy M.: “The First Amendment and the Second Commandment”, 57 NYU Law Review 41 (2012–13).

Belavusau, Uladzislau: “Art, Pornography and Foucauldian Reconstruction of Comparative Law”, 17 Maastricht Journal of European Law 252 (2010).

Belavusau, Uladzislau: “EU Sexual Citizenship: Sex Beyond the Internal Market”, 6 EUI Law Working Paper (2015) [also forthcoming in Kochenov, D.: (ed.), EU Citizenship and Federalism: The Role of Rights, Cambridge: CUP (2016).

Benjamin, Jessica: “Master and Slave: the Fantasy of Erotic Domination”, in Snitow, Ann (ed.): Powers of Desire: The Politics of Sexuality, Monthly Review Press (1983).

Carol, Avedon, Nudes: Prudes and Attitudes: Pornography and Censorship, New Clarion Press (1994).

Dworkin, Andrea: Pornography – Men Possessing Women, Plume (1991).

Dworkin, Ronald: “Do We Have a Right to Pornography”, in A Mater of Principle, Oxford: Oxford University Press (1986).

Foucault, Michel: Histoire de la Sexualité: La volonté de savoir, Editions Gallimard (1976).

Guyenot, Laurent: Le livre noire de l’industrie rose. De la pornographie à la criminalité sexuelle, Imago (2000).

Koppelman, Andrew: “Is Pornography ‘Speech’?”, 14 Legal Theory 71 (2008).

MacKinnon, Catharine A.: Only Words, Harvard University Press (1993).

Rétif, Nicolas-Edme: Le Pornographe (1769).

Sadurski, Wojciech: “On ‘Seeing Speech Through an Equality Lens’: A Critique of Egalitarian Arguments for Suppression of Hate Speech and Pornography”, 16 Oxford Journal of Legal Studies 713 (1996).

Schroeder, Theodore: A Challenge of Sex Censors (privately printed to promote the aims of the Free Speech League), New York (1938).

Shytov, Alexander: “Indecency on the Internet and International Law”, 13 International Journal of Law and Information Technology 260 (2005).

Walter, Kendrick: The Secret Museum: Pornography in Modern Culture, University of California Press (1996).

Willis, Ellen: “Lust Horizons: Is the Women’s Movement Pro-Sex?”, 1981.

AKDAŞ v. TURKEY (ECtHR 16/02/2010, 41056/04).

CONEGATE v. HM CUSTOMS & EXCISE (CJEU 11/03/1986, C-121/85).

EROTIC CENTER BVBA v. BELGISCHE STAAT (CJEU 18/03/2010, C-3/09).

HANDYSIDE v. UK (ECtHR 07/12/1976, 5493/72).

MÜLLER AND OTHERS v. SWITZERLAND (ECtHR 24/05/1988, 10737/84).

REGINA v. HENN & DARBY (CJEU, 14/12/1979, C-34/79).

VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA (ECtHR 25/01/2007, 68354/01).

Uladzislau Belavusau

Poverty

(and Access to Culture)

DEF: In terms of human rights, poverty may be defined as a human condition characterised by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights (CESCR, 2001). This definition reflects a common trend in international discourses as well as in human rights law to understand poverty more broadly than merely in terms of income poverty, thus improving chances of addressing different aspects of life affected by poverty, including its impact on access to culture by impoverished people and their ability to enjoy their own culture.

INSTR: One of the developments in international human rights law is a new approach to poverty eradication. At the UN level, the Human Rights Council adopted, in September 2012, a soft law instrument, the Guiding Principles on Extreme Poverty and Human Rights. Inter alia, these global policy guidelines provided recommendations with regard to specific rights, including the rights to take part in cultural life and to enjoy the benefits of scientific progress and its applications, whose enjoyment by persons living in poverty is particularly limited and obstructed, and in relation to which state policies are often inadequate or counterproductive. The Guiding Principles were preceded by the establishment of a Special Rapporteur on extreme poverty and human rights in 1998 by the UN Commission on Human Rights.

The relation between poverty and the right of everyone to take part in cultural life has also been elaborated 2009 in the CESCR General Comment No. 21, which underlines that ‘in practice, poverty seriously restricts the ability of a person or a group of persons to exercise the right to take part in, gain access and contribute to, on equal terms, all spheres of cultural life, and more importantly, seriously affects their hopes for the future and their ability to enjoy effectively their own culture.’ As a consequence, and based on Article 15 ICESCR, states would be obliged to adopt, without delay, concrete measures to ensure adequate protection and the full exercise of the right of persons living in poverty and their communities to enjoy, and take part in, cultural life.

On the European level, the main reference point for a human rights approach to poverty is the Revised European Social Charter of 1996 (CETS No. 163). In order to ensure an effective exercise of ‘the right to protection against poverty and social exclusion’, Article 30(2a) of the Charter obliges states to ‘take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance’. CASES: The question of the relation between poverty and culture does not yet appear in the jurisprudence of the main human right bodies, especially the ECtHR. A possible explanation for this lack of case-law can be seen in the fact that the ECHR is not an instrument specifically dedicated to the protection of economic social and cultural rights. However, the ECtHR in its jurisprudence ruled that an interpretation of the Convention may extend into the sphere of social and economic rights because there is no watertight division separating that sphere from the field covered by the Convention [AIREY, 1979]. Poverty-related issues were also raised in another judgment [M.S.S., 2011], in which the Court did not exclude the possibility of state responsibility in the context of poverty under Article 3, which prohibits inhuman treatment. According to the court, such possibility exists where an applicant, in circumstances wholly dependent on state support, found herself faced with official indifference while experiencing a situation of serious deprivation or need incompatible with human dignity (para. 235).

The European Committee of Social Rights, in its practice, also does not directly tackle the issue of the relation between poverty and culture. However, the ECSCR (Conclusions 2003, France, p. 214) has declared that living in a situation of poverty and social exclusion violates the dignity of human beings. Concerning requirements derived from article 30 of the Revised European Social Charter, the Committee declared that states are required to adopt an overall and coordinated approach, which should consist of an analytical framework, a set of priorities and measures to prevent and remove obstacles to access fundamental social rights. Monitoring mechanisms should also exist involving all relevant actors, including civil society and persons affected by poverty and exclusion. This approach must link and integrate policies in a consistent way, moving beyond a purely sectorial or target group approach.

VIEWS: The relationship between poverty and the right to culture is not yet properly covered in literature. However, poverty influences culture in at least two dimensions. First, poverty seriously restricts the ability of individuals or groups to exercise their right to take part in cultural life. Second, poverty has an impact on the ability of people experiencing it to enjoy their own culture. This is exactly the case of indigenous peoples and other minorities which live in poverty, such as →Roma people.

On the other hand, culture can influence poverty eradication. A study for the European Commission (Woods et al, 2004) finds that cultural activities can be instrumental in helping people to overcome poverty and social exclusion, through e.g. ‘building skills and self-confidence’ and ‘enhancing self-esteem and identity’.

CONCL: People experiencing poverty, or even worse, extreme poverty, are clearly suffering from a denial of human rights. Consequently, a human rights based approach can assist efforts to eradicate poverty. Emerging human rights law and jurisprudence provide some guidance on how human rights of poor people should be respected in policies designated to the eradication of poverty. The essence of such an approach to poverty is comprehensiveness, which means that, despite attention on access of impoverished persons to basic necessities like the right to food, water and shelter, attention is also to be paid on other rights and freedoms, including those to take part in cultural life and to enjoy their own culture. While this approach is relatively new, it will probably be further developed in the years to come.

REFERENCES:

CESCR: Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights, (2001).

European Committee of Social Rights: Conclusions 2003, France, 214, (ECSCR).

Eversole, Robyn; McNeishand, John-Andrew; d. Cimadamore, Alberto (ed.): Indigenous peoples and poverty: an international perspective, London: Zed Books (2005).

Khan, Irene: The Unheard truth Poverty and human rights, Amnesty International, New York–London (2009).

OHCR, Human Rights and Poverty Reduction: A Conceptual Framework, New York, Geneva (2004).

Pogge, Thomas (ed.): Freedom from Poverty as a Human Right: Who OwesWhat to the Very Poor?, Oxford: Oxford University Press (2007).

Redefining and combating poverty Human rights, democracy and common goods in today’s Europe; Paris: Council of Europe Publishing (2012).

Spicker, Paul; Alvarez-Leguizamón, Sonia; Gordon, David: Poverty An International Glossary, (Second Edition) London: Zed Books (2007).

Woods, Roberta; Dobbs, Lynn; Gordon, Christopher; Moore, Craig; Simpson, Glen: The role of culture in preventing and reducing poverty and social exclusion. Study for the European Commission, Brussels (2004).

AIREY v. IRELAND (ECtHR 09/10/1979, 6289/73).

M.S.S. v. BELGIUM AND GREECE (ECtHR 21/01/2011, 30696/09).

Adam Ploszka

Press Freedom

DEF: Some key elements mark the democratic archetype: fairness of elections, citizens’ participation, protection of human rights and the rule of law (Diamond, 2004). Alongside these basic requirements, another value typifies modern democracies: the freedom of the press. Despite being generally recognised as a cornerstone in the advancement of the ‘rule of the people’ doctrine, this freedom is currently under threat in many parts of Europe and the world: from Turkey, where the press is being forcibly converted into a mere state tool, to EU members like Greece or the Netherlands, where journalists are discouraged from reporting on national migration policies, or to China, where the government is harassing family members of journalists to silence dissident voices.

INSTR: Although not explicitly mentioned in the ECHR, freedom of the press is broadly covered by Article 10 ECHR (Freedom of Expression and Information (FoE)), as underlined by relevant jurisprudence of the ECtHR. In addition, it is protected by Article 11 of the EU Charter of Fundamental Rights. However, the provisions set for by the EU Charter would have left a legislative vacuum if not supported by the ECtHR’s case-law: the Court’s extensive interpretation of Article 10, its strict scrutiny of national authorities’ interferences in FoE regarding issues of public interest covered by critical media in their role of public watchdog (Voorhoof, 2014), has provided a higher protection to journalistic activities, stressing the state’s positive obligation descending from Article 10 ECHR to promote, guarantee and safeguard the enjoyment of this right. Press freedom, interpreted as an indicator of a functioning democratic society, has thus transformed into a fundamental constitutional standard. Once envisaged as a free, independent and objective ‘Fourth Estate’ (Carlyle, 1837), it is now considered a core value for the implementation of the rule of law and citizens’ effective participation in democratic dialogue (Muižnieks, 2014).

CASES: [SUNDAY TIMES, 1979] was the first effective contribution to a broad interpretation of Article 10. The ECtHR recognised the importance of press reporting on issues of public interest and found the UK guilty of violating the mandate of this provision. In the decision, the Court stressed that mass media, while respecting the bounds imposed for a proper administration, are entitled to impart information in areas of public interest and the public has the right to receive them. Following this judgment, extensive case-law has further extended the scope of Article 10, especially by improving the protection of journalistic activities in a broader sense, including contributions from activists, opinion leaders or NGOs and underlining the importance of such activities for public debate and the democratic process [YOUTH INITIATIVE FOR HUMAN RIGHTS, 2013]. The positive obligation binding states to ensure press freedom has assumed greater significance in cases where the actors involved are, or could be, subjected to personal life threats [OZGŰR GŰNDEM, 2000].

VIEWS: The ‘World Press Freedom Index 2015’, published by the NGO Reporters Sans Frontières (RSF/RWB), registered a worldwide deterioration in freedom of information and investigative journalism. According to the Index, severe threats to media freedom are found in smaller countries such as Azerbaijan, ‘Macedonia’ or Turkmenistan as much as in large ones like China, Egypt, Russia or Turkey. Indeed, Turkey recently became an obvious example for countries where the rights of the media are exposed to constant non-observanceand constriction. The escalation dates back to the Gezi Park events of summer 2013: Media coverage of the protests was harshly censored and resulted, according to the Turkish Journalists’ Union (TGS), in the dismissal of 22 journalists and the forced resignations of another 37 professionals. The raid of December 2014, in which prominent journalists were arrested, led to reactions from the EU, the Council of Europe and the OSCE. Since then, further attacks on media pluralism and freedom rights have followed, particularly 2016 as regards the antagonist or independent press.

For the tenth consecutive year, global press freedom declined to its lowest point, according to the annual mapping report ‘Freedom of the Press 2015’ published by Freedom House: Out of 199 countries assessed, the press is only partly free in 71 countries, and not free at all in 65 countries. The role of the press and of journalists to raise awareness among citizens on issues of public relevance is curbed by legislation grounded on Article 19(3) of the ICCPR, or on Article 10(2) of the ECHR, granting states the right to limit press freedom for national security reasons (ordre public). However, as stressed by the Johannesburg Principles (U.N. Doc. E/CN.4/1996/39), any restriction based on national security claims must have a ‘genuine purpose and demonstrable effect of protecting a legitimate national security interest’ (Article 1(2)). In addition, as stipulated by the ECtHR’s jurisprudence, states have a positive obligation to create a favourable environment for everyone to participate in public debates and to express opinions and ideas freely, avoiding any kind of self-censorship or fear. Accepting or supporting criticism, listening to counterparts’ demands and needs contribute to modern democratic societies. In order to prevent the risk of state censorship via an exploitation of the ordre public provisions, the European Parliament has developed a strategy aiming to monitor and implement the status of press freedom within and outside regional borders: the methodology (European Parliament resolution, 2013) focuses on the effectiveness of press freedom as a basic, undeniable right, entrusting the monitoring of national policies to EU’s Fundamental Rights Agency.

CONCL: With regard to press freedom, three main functions of the media should be kept in mind: (1) enabling, and participating in, the debate over the public sphere; (2) providing information to citizens on recent administrative decisions; (3) safeguarding governments’ transparency. Since the subsidiary protection that is currently granted to the press by Article 10 ECHR and Article 11 of the EU CFR remains insufficient, important steps must still be taken to adopt and implement measures to protect the crucial role of media for a stable, democratic order.

Although generally safeguarded by international covenants, national constitutions and the ECtHR’s jurisprudence, the central role of the press as a tool for enhancing democracy and fundamental rights is currently under pressure: the function of the media as a public ‘watchdog’ is often restricted, sometimes prevented, especially when reporting on sensitive topics. Political actors and supra-national institutions should not refrain from fulfilling their human rights obligations whenever freedom of expression in its individual or collective forms – and especially press freedom as one of the pillars of democracy – are threatened. Avoiding protests against national encroachments on media or against acts of censorship and authoritarianism could indeed lead to an illiberal reinterpretation of the concept of fundamental freedoms, dismissing their inner value and the progressive development of mankind. Press freedom and other civil liberties – as ‘essentially contested concepts’ (Gallie, 1956) – should not suffer from further discrimination and misunderstandings that may slowly erode the foundations of modern democratic governance.

REFERENCES:

Carlyle, Thomas: “The French Revolution: A History”, 1837, in Thomas Carlyle, Dumfries and Galloways (2008).

Diamond, Larry: “What is Democracy”, Lecture at Hilla University for Humanistic Studies (2004).

European Parliament Resolution: EU Charter: standard settings for media freedom across Europe, adopted on March 2013.

Gallie, Walter Bryce: Essentially contested concept, paper presented at the Aristotelian Society, London, (1956).

Muižnieks, Nils: “The Alarming Situation of Press Freedom in Europe”, in Transatlantic Relations: a European Perspective, The Regent’s Report, London: Regent’s University London (2014).

Voorhoof, Dirk: “The Right to Freedom of Expression and Information under the European Human Rights System: Towards a more Transparent Democratic Society”, Robert Schuman Centre for Advanced Studies Centre for Media Pluralism and Media Freedom, European University Institute, Florence, EUI Working Paper RSCAS 2014/12 (2014).

OZGÜR GÜNDEM v. TURKEY (ECtHR 16/03/2000, 23144/93).

SUNDAY TIMES v. UK (ECtHR 26/04/1979, 6538/74).

YOUTH INITIATIVE FOR HUMAN RIGHTS v. SERBIA (ECtHR 25/06/2013, 48315/06).

Freedom House: freedomhouse.org (accessed 04/2016).

Reporters Without Borders/Sans Frontières: rsf. org/en (accessed 04/2016).

Roberto Frifrini

Privacy

DEF: Privacy can be understood either as a sphere of private or professional life which is normally kept ‘private’, i.e. not accessible by other persons, organisations, state agencies etc., or as limiting the access others have to one’s personal information based on individual choices. While securing the latter, e.g. by using encryption technology, could be seen as falling mainly into one’s own responsibility, the protection of a person’s private sphere is a fundamental human right, recognised by the main international legal instruments that place obligations on states. It is closely related to →human dignity, democracy and core HR such as freedom of association and belief, but may collide with freedom of expression, economic efficiency or national security policies.

New digital technologies have changed our lives, and offer new possibilities for personal development and communication. On the other hand, areas of retreat become rare in digitally networked societies, where on consistent basis, information about human behaviour is collected, connected and valorised. Large and interconnected data sets or ‘Big Data’ under commercial or state control are increasingly seen as a danger to democratic processes because of their potential to manipulate and restrain citizens in the exercise of their rights. In the media and in artistic practice, threats to privacy can also lead to self-censorship or conformity.

INSTR: Specific references to the protection of privacy can be found in many international as well as European and other regional instruments. For example, the UDHR reads, in Article 12: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’ Similar wording can be found in Article 17 of the ICCPR, except that the word ‘unlawful’ has been added before ‘attacks’. While Article 8 ECHR guarantees privacy in a similar manner, this right can be subject to restrictions or interference by public authorities that are ‘in accordance with law’ and ‘necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. Because of states’ wide →margin of appreciation of such restrictions, this article is considered to be ‘one of the most openended provisions of the Convention’ (Wicks et al. 2014, p. 334).

The CoE Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 aims to secure respect for everyone’s rights and fundamental freedoms ‘and in particular his/ her right to privacy’ (Article 1) and, more specifically, provides that ‘personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards’ (Article 6). However, Article 9 also provides for a derogation of such guarantees e.g. on grounds of state security or even the ‘monetary interests of the State’.

Despite provisions in the →Charter of Fundamental Rights (Articles 7 and 8) that can also be relevant for state surveillance, privacy regulations of EU bodies today specifically focus on the use of data by technology companies. For example, the E-Privacy Directive 2002/58/EC, amended by Directive 2009/136/EC, referring explicitly to Article 8 of the ECHR and ECtHR case-law, prohibits listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data without the consent of the users concerned, thus forcing companies to obtain consent for cookies and similar technologies. A new Directive is under preparation (2016), that would enable Internet users to request companies to apply the ‘right to be forgotten’ and delete personal information that is no longer relevant.

CASES: While in the past, case-law of the ECtHR frequently dealt with a breach of privacy on account of a specific sexual orientation [e.g. MODINOS, 1993], more recent cases address, inter alia, state surveillance. In [ROTARU, 2000], the Court reiterated its position that storing ‘information relating to an individual’s private life in a secret register and the release of such information come within the scope of Article 8(1)’. As well, ‘public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. This is all the truer where such information concerns a person’s distant past’. Where personal information is stored for national security reasons, adequate and effective guarantees against an abuse by the state should exist, ‘since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it’ [KLASS AND OTHERS, 1978]. Measures guaranteeing transparency and an eventual deletion of unfounded information could also concern the storage of investigation reports in a police database [BRUNET, 2014].

National courts contributed to limiting states’ surveillance practice. For example, the German Constitutional Court developed, in a landmark ruling of February 2008, a new ‘basic right to the confidentiality and integrity of informationtechnological systems’ (1 BvR 370/07), limiting secret online searches of computers by government agencies – called ‘Federal Trojan’ by privacy activists (Chaos Computer Club) – to individual cases where ‘factual indications for a concrete danger’ for the life, body and freedom of persons or for the foundations of the state or humanity could, after approval by a judge, justify such measures. This decision, as well as a more recent one in April 2016 declaring parts of a law granting anti-terror surveillance power to the Federal Criminal Police (BKA) unconstitutional, complemented earlier privacy rulings of the Court, including the ‘right to informational self-determination’ (1983) and the right to an ‘absolute protection of the core area of the private conduct of life’ (2004).

While the main objective of Article 8 ECHR is to protect individuals against arbitrary interference by public authorities and may require positive obligations of states [AIREY, 1979, § 32], these obligations now cover also professional or commercial activities [NIEMIETZ, 1992] and the sphere of relations between individuals, including on the Internet, where an ‘effective deterrence’ against grave violations of fundamental values and privacy by users or access providers calls for ‘efficient criminal-law provisions’ [K.U., 2008]. This view could gain additional weight with regard to spying capacities of contemporary technological devices such as smartphones or ‘Google Glass’.

Google has also been involved in a recent case of the CJEU [GOOGLE SPAIN SL, 2014] that dealt with the question whether citizens could demand to be excluded from the results produced by the search engine of the company. Referring to provisions of the EU →Charter of Fundamental Rights protecting personal data and privacy, the Court held that individuals without an important role in public life may, in the light of their ‘fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public’ and that ‘those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name’. In another case [MAXIMILLIAN SCHREMS, 2015], the CJEU also found the ‘safe harbour’ decision of the EU Commission, under which surveillance data are transmitted to the USA, to be invalid.

VIEWS: While privacy is often considered to be a precondition for liberal democracy and freedom, surveillance and state control of all citizens as well as certain forms of networked, data-rich marketing can, at best, result in ‘modulated societies’ (Cohen, 2013). Following the rapid development of information technologies and ‘social’ (actually: commercial) networks or platforms based on continuous, pervasively distributed, and persistent data mining, ‘Big Data’ issues moved on top of the news and also led to intense research efforts (see e.g. Fuchs et al, 2012). In addition, the revelations of →whistleblowers and NGOs (e.g. Privacy International) about state surveillance programmes in the USA and other countries helped shape international debates on privacy issues and prompted legal and political action.

Despite the progress that has been made in recent years, mostly via case-law, many citizens and particularly Internet bloggers remain sceptical and fear that governments or state agencies will ‘stretch’ exception clauses in their future practice. A recent empirical study in the USA (Stoycheff, 2016) confirmed a ‘silencing effect’ or self-censorship among a majority of citizens with dissenting opinions once they are aware of government surveillance, most of them reacting by suppressing opinions that they perceived to be in the minority. In an interview (Washington Post, 28 March 2016), lead researcher Elizabeth Stoycheff found that the ‘fundamental human right to have control over one’s self-presentation and image, in private, and now, in search histories and metadata’ is endangered and that ‘the adoption of surveillance techniques, by both the government and private sectors, undermines the Internet’s ability to serve as a neutral platform for honest and open deliberation’.

Policy makers, for their part, seem to be torn between security concerns and defence of HR: Overshadowed by extremist activities, both on the Internet and on the ground, the 2015 Helsinki Declaration of the OSCE summed up a widespread understanding of issues at stake by calling on states ‘to take all necessary measures to prevent the use of information and communication technologies for terrorist purposes, while promoting a multidimensional approach to cyber security that takes into account the interests of various stakeholders and ensures respect for freedom of expression’.

CONCL: Data protection, and thus the respect for individual privacy as an expression of human dignity, is of the highest importance for safeguarding the achievements of liberal democracy. It demands both more awareness of connected issues on the part of ‘net citizens’ as well as self-restraints on the part of state authorities and commercial actors. Since state agencies and private companies permanently and causelessly collect personal data of citizens, treaties where privacy as a HR is either absent or only vaguely defined, such as the ICCPR, may need to be supplemented by a protocol to adapt to technological innovations. Negotiations that have been taking place for some time between the European Commission and US authorities with a view to introducing a new, more privacy protective arrangement to replace the existing ‘Safe Harbor’ agreement led, in 2016, to a new framework. However, experts seriously doubt that this so-called ‘Privacy Shield’ can actually bring the practice of copious and causeless mass surveillance to an end, a practice that proved to be of no value in the necessary fight against crime or terrorism.

REFERENCES:

Baum, Gerhart R.: Rettet die Grundrechte! Bürgerfreiheit contra Sicherheitswahn – Eine Streitschrift. Cologne: Kiepenheuer & Witsch (2009).

Cohen, Julie E.: “What Privacy is For”, 126 Harvard Law Review (2013), 1912.

De Schutter, Olivier: International Human Rights Law: Cases, Materials, Commentary, Cambridge: Cambridge University Press (2014).

Fuchs, Christian; Boersma, Kees; Albrechtslund, Anders; Sandoval, Marisol (eds.): Internet and Surveillance. The Challenges of Web 2.0 and Social Media, Oxford: Routledge (2012).

Stoycheff, Elizabeth: “Under Surveillance: Examining Facebook’s Spiral of Silence Effects in the Wake of NSA Internet Monitoring”, Journalism & Mass Communication Quarterly (2016), 1.

Wicks, Elizabeth; Rainey, Bernadette; Ovey, Clare (eds.): Jacobs, White and Ovey: the European Convention on Human Rights. Oxford: OUP (2014).

European Court of Human Rights/Research Division: Case-law Research Reports (National security/Internet), www.echr.coe.int (accessed 04/2016).

European Union Agency for Fundamental Rights/ Council of Europe: Handbook on European data protection law, Luxembourg: Publications Office of the European Union, 2014.

AIREY v. IRELAND (ECtHR 09/10/1979, 6289/73).

BRUNET v. FRANCE (ECtHR 05/02/2009, 42117/04).

GOOGLE SPAIN SL, GOOGLE INC. v. AGENCIA ESPAÑOLA DE PROTECCIÓN DE DATOS, MARIO COSTEJA GONZÁLEZ (CJEU/GC, 13/05/2014, C-131/12).

K.U. v. FINLAND (ECtHR 02/12/2008, 2872/02).

KLASS AND OTHERS v. GERMANY (ECtHR 06/09/1978, 5029/71).

MAXIMILLIAN SCHREMS v. DATA PROTECTION COMMISSIONER (CJEU/GC, 06/10/2015, C-362/14).

MODINOS v. CYPRUS (ECtHR 22/04/1993, 15070/1989).

NIEMIETZ v. GERMANY (ECtHR 16/12/1992, 13710/88).

ROTARU v. ROMANIA (ECtHR 04/05/2000, 28341/95).

www.privacyinternational.org/legal-actions (accessed 03/2016).

Gerhart Rudolf Baum

Producers

DEF: Producers’ activity in the arts and media domains can be manifold; it is rarely a subject of human rights’ debates and is rather guided by professional or contractual law. However, there are instances where producers have had to face controversial issues in the context of conflicting rights.

CASES: A fair balance has to be struck between every person’s right to protection of privacy, including one’s own or family’s reputation, as covered by Article 8 ECHR and the right of media and producers to freedom of expression guaranteed under Article 10 ECHR. This balancing exercise may be subject to ECtHR scrutiny. For example, in [PUTISTIN, 2014], the Court examined a press article that reproduced statements made by a film director and a film producer about a possible film production based on historical events during WW II. Studying the circumstances of that case, the Court concluded that the applicant’s Article 8 rights were marginally, and only in an indirect manner, affected by an article reproducing statements of the makers of the proposed film and considered that the domestic courts in Ukraine had not failed to strike an appropriate balance between the applicant’s rights and those responsible for the newspaper report. In another case [SALIYEV, 2010], the ECtHR pointed out ‘that the relationship between a journalist and an editor-in-chief (or publisher, producer, director of programmes, and so on) is not only or always a business relationship’, thus all interests at stake must be thoroughly examined. Particularly interesting cases were brought before the Court concerning broadcasting licencing [MELTEX, 2008], the obligation of news producers to disclose information [NAGLA, 2013] or divulgation of confidential information [RICCI, 2014].

CONCL: Directly or indirectly, producers’ interests and rights may be caught in a balancing exercise of conflicting rights and thus their position has to be duly examined by the national authorities called upon to rule on different interests at stake.

REFERENCES:

PUTISTIN v. UKRAINE (ECtHR, 21/02/2014, 16882/03).

SALIYEV v. RUSSIA (ECtHR, 21/10/2010, 35016/03).

MELTEX LTD. AND MESROP MOVSESYAN v. ARMENIA (ECtHR 17/06/2008, 32283/04).

NAGLA v. LATVIA (ECtHR 16/07/2013, 73469/10).

RICCI v. ITALY (ECtHR, 08/01/2014, 30210/06).

Geanina Munteanu

Public Broadcasting

(Access to / Diversity of Public Service Media)

DEF: Public service media (PSM) are crucial to enable high-quality cultural content: Media with editorial independence, where they exist, can drive the diversity of cultural expressions of →producers, commissioners, distributors, disseminators and cultural mediators, whatever the means and technologies used. Elements of such aims are also part of the self-definition of PSM as expressed by the European Broadcasting Union (EBU, 2016), which declares that its member organisations are ‘promoting public values by informing, educating and entertaining’ and that ‘trust is at the centre of the relationship with the audiences to ensure their place as the most credible, diverse and creative national media broadcaster’. In a majority of the European countries, public broadcasting organisations are funded by license fees paid by all households (with advertising revenues only as a minor source of income).

Today’s quantum leap in access to media outlets and greater choices does not mean that the →media content available via those channels is necessarily ‘freer’ or a guarantee of diversity of content and expressions. Therefore, freedom of information laws and their effective implementation, together with transparent licensing obligations, are essential, as there can be no media diversity without media freedom. The multiplicity of languages used is a vital dimension of diversity and often subject to positive regulation and public policies.

INSTR: The right to freedom of expression is guaranteed in Article 10 ECHR and includes the ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. However, this provision does not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. In the EU, the latter is actually a condition for the derogation from the general ban on state aid (Article 106(2) TFEU), based on the Amsterdam Protocol (1997) to the Treaty of the European Community, which ties funding of PSM in the EU member states with the ‘fulfilment of the public service remit’ in order to cover ‘the democratic, social and cultural needs of each society’ and to ‘preserve media pluralism’. In most European countries, this is reflected in specific broadcasting or media laws and regulations, which often include cultural obligations or quota for specific types of programmes (Council of Europe/ERICarts, 2016).

Similar principles regarding public broadcasting and other PSM as well as independent media producers are found among the core messages of the 2005 UNESCO Convention, comprising

–the enhancement of media diversity for achieving the Convention’s objectives across the cultural value chain, including through public service media;

–the need to ensure freedom of thought, expression and information, the free exchange and circulation of ideas as well as diversity of the media for cultural expressions to flourish within societies;

–the principle of technological neutrality, hence the prevalence of cultural content over technological channels of transmission; and

–the articulation of binding policy standards regarding the dual nature of cultural goods and services that should achieve a balanced and specific treatment of cultural and audiovisual goods and services in international trade policies.

CASES: In the field of audio-visual broadcasting, the ECtHR considered that a public monopoly ‘imposes the greatest restrictions on the freedom of expression’. Therefore and because such restrictions are not any more state of the art due to ‘the number of frequencies and channels available’, they ‘can only be justified where they correspond to a pressing need’ [INFORMATIONSVEREIN LENTIA AND OTHERS v. AUSTRIA, 1993]. However, ‘where a State...decide[s] to create a public broadcasting system,... domestic law and practice must guarantee that the system provides a pluralistic service’ that provides citizens with access to ‘a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country’ [MANOLE AND OTHERS, 2010]; in this case, the Court reflected both the plurality of views of journalists, editors and producers working in the state-owned broadcasting company of Moldova and the (insufficient) composition of supervisory bodies. Similar views were held in the case of a local public journal whose copies were withdrawn because of the viewpoints expressed in an article [SALIYEV

v. RUSSIA, 2010]. The Court concluded that this withdrawal violated Article 10 ECHR and pointed out ‘that the relationship between a →journalist and an editor-in-chief (or publisher, producer, director of programmes, and so on) is not only or always a business relationship’. Therefore, in carrying out its mission to inform the population about the social, political and cultural life, a public utility institution normally has to follow stricter rules regarding the diversity of expressions than would be the case with private media.

However, as regards audio-visual regulations promoting cultural content and diversity, the CJEU confirmed the legality of related measures also for private television companies, referring inter alia to the 2005 UNESCO-Convention [UTECA, 2009]. A Royal Decree requiring television operators to allocate 5% of their operating revenue to the funding of cinematographic films and European films made for television as well as 60% of that funding to the production of films in one of the official languages of Spain has been found to be compatible with Council Directive 89/552/EEC (1989) that coordinates regulations of television broadcasting activities in member states of the EU.

VIEWS: High levels of sustained investment in original (local) cultural content through PSM, in general, and public broadcasters, in particular, remain a key policy priority in a converging media environment in order to promote the diversity of cultural expressions. Due to the tension between cultural objectives and the marketplace, enhancing the diversity of the media is a difficult but necessary task, in particular with regard to commercial broadcasting and private newspaper publishers, which can only promote public communication and the diversity of cultural expressions if also economically viable as enterprises. If successful, the partly contradictory demands made on the media sector and media culture might be reconciled.