Centre for Law and Democracy

In many countries, criminal restrictions on the content of what may be published or broadcast seriously undermine respect for the right to freedom of expression. Often they ban far too much speech in the first place while in other cases they are drafted in vague terms which render them susceptible of overbroad application. The Centre for Law and Democracy (CLD) is today releasing a set of short Notes on international standards for criminal restrictions in five key areas, with the aim of helping interested stakeholders better understand the issues involved.

Click here for the Note on Alternatives to Criminal Rules (in English) (in Arabic)
Click here for the Note on Defamation (in English) (in Arabic)
Click here for the Note on Hate Speech (in English) (in Arabic)
Click here for the Note on National Security and Terrorism in (English) (in Arabic)
Click here for the Note on Privacy in (English) (in Arabic)
Click here for the Note on Protection of the Sacred and Blasphemy (in English) (in Arabic)

The Notes were prepared for the workshop: Toward Media Regulatory Reform in the Middle East and North Africa: Workshop on Criminal Restrictions on Media Content. The event – which brought together experts from across the region in Beirut, Lebanon, from 24-25 April 2014 – was hosted jointly by CLD, International Media Support and Maharat Foundation. The Notes discuss major issues and international standards in five key thematic areas, namely defamation, hate speech, national security, blasphemy and privacy.

“The Middle East and North Africa is going through a tremendous transition, as a range of local actors, including media outlets, civil society and increasingly political players are demanding legal frameworks which conform to international human rights standards,” said CLD Executive Director, Toby Mendel. “The purpose of these Notes is to provide these actors with a clear, concise statement of relevant international standards in the area of criminal content restrictions.”

Despite recent improvements, the Middle East is among the world’s worst regions in terms of respect for freedom of expression. Although the Notes focus on issues which are of particular relevance in that region, the standards they outline are derived from international law and are, as a result, applicable everywhere in the world.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
Tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy

Newfoundland and Labrador’s government has introduced a bill to protect those who expose serious wrongdoing and threats, i.e. whistleblowers, but is seeking to maintain a veil of secrecy around the Cabinet, even in the context of potentially criminal behaviour. The exception for cabinet documents was one of the key problems identified in an analysis released today by the Centre for Law and Democracy (CLD).

Click here to read the Analysis
Click here to read Bill 1

Newfoundland and Labrador is one of only two provinces in Canada which has still not adopted legislation to protect whistleblowers. Bill 1 aims to rectify that problem, but it has important shortcomings.

“Blowing the whistle on acts of corruption or mismanagement is an incredibly brave act, which can expose employees to serious personal and professional risks,” said Toby Mendel, Executive Director of CLD. “Governments need to put in place robust legal regimes to protect people who disclose information for the public good.”

Other major problems identified in the analysis include:
➢ It is limited to employees in the public sector, whereas better practice, for example as reflected in the UK’s Public Interest Disclosure Act, covers the private and voluntary sectors as well.
➢ It only protects disclosures to the Citizens’ Representative, an ombudsman, instead of recognising that in some cases public disclosures are needed.
➢ It is limited to wrongdoing committed after the law comes into force.
➢ It provides insufficient protection to whistleblowers.

CLD calls on Newfoundland and Labrador’s House of Assembly to review the Bill in light of our analysis and to amend it to bring it into line with better practice both across Canada and internationally.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy

On 12 May 2014, the Council of the European Union adopted the EU Human Rights Guidelines on Freedom of Expression: Online and Offline (Guidelines). The initiative to adopt the Guidelines, which provide “political and operational guidance” to EU staff regarding this important area of EU foreign policy and assistance, is welcome.

At the same time, there are certain problems from the perspective of freedom of expression in the Guidelines. It is, in particular, very problematical that the Guidelines fail to recognise the right of the public to access information held by public authorities as an element of the right to freedom expression and as an operational priority for the EU.

This omission seriously undermines the effectiveness of the Guidelines. The right to access information held by public bodies, or the right to information, has been recognised unequivocally at the international and European level, including by the United Nations Human Rights Committee and the European Court of Human Rights, as well as by regional human rights bodies including the African Union and the Organisation of American States. It is not clear why such an important aspect of the right to freedom of expression – an area in which the EU has been active – should have been entirely left out of the Guidelines.

Paragraph 14 of the Guidelines recognise that, in certain circumstances, human rights outcomes may “be assisted” by the disclosure of information held by the State and that this “can serve to promote justice and reparation”, but they fall short of recognising a right to information. The Guidelines also largely fail to recognise promotion of the right to information as a priority area for action, although paragraph 32 does call for support for the adoption of freedom of information laws.

A further concern is that a document of this importance should have been the subject of an open and meaningful process of consultation before it was finalised. Instead, only limited and essentially internal consultations took place. While internal consultations are an appropriate part of the process, the Guidelines should have been the subject of an open public consultation before being adopted in a final version. At a minimum, this would require a formal draft version of the Guidelines to be posted online, with an opportunity for stakeholders to provide comments.

We do not believe the Guidelines are complete without a clear reference to the right to information and a strong commitment to priority action in this area. We therefore call on the relevant EU actors to reconsider the Guidelines with a view to addressing these concerns. Alternatively, we call on the EU to adopt a dedicated set of guidelines on the promotion of the right to information as an element of freedom of expression.

Signatories:

ARTICLE 19
Centre for Law and Democracy
European Federation of Journalists
Free Press Unlimited
Global Forum for Media Development
Index on Censorship
International Media Support
Internews – Europe
Vivarta

For further information please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Mob: +1 902 997-1296
Office: +1 902 431-3688
www.law-democracy.org
Twitter: @law_democracy
Skype ID: toby-mendel

Today, the 17th annual Joint Declaration by the four specialised mandates tasked with promoting and protecting freedom of expression at the UN, OAS, OSCE and African Commission was launched in Paris, France. This latest Declaration, prepared with the assistance of the Centre for Law and Democracy and ARTICLE 19, highlights issues relating to the universality of the right to freedom of expression.

Click here to read the Joint Declaration in English
Click here to read the Joint Declaration in Arabic
Click here to read the Joint Declaration in French
Click here to read the Joint Declaration in Russian
Click here to read the Joint Declaration in Spanish

“The universality and inter-dependence of all human rights has long been recognised by international bodies, including the United Nations,” said Toby Mendel, Executive Director of CLD, who participated in the launch event. “But this is the first time that a statement has been adopted highlighting the specific attributes of universality in the context of the right to freedom of expression.”

The Joint Declaration focuses on two related aspects of universality in relation to freedom of expression, namely the right of all individuals and groups in society to enjoy this foundational right and the illegitimacy of imposing restrictions on freedom of expression which seek to impose the traditions, culture and value of dominant groups on others. To achieve these ends, the Joint Declaration recognises that certain laws, customs and practices may need to be modified or even eliminated.

Some of the other key points made in the Declaration include the following:
• States should put in place positive measures – including the promotion of public service broadcasting and community media – to ensure that all individuals and groups in society can enjoy the right to freedom of expression.
• States have little or no power to restrict certain types of speech, most importantly political speech.
• Laws which restrict speech to protect religions, which prevent minorities from speaking out about issues of concern to them or which provide special protection to officials and State symbols are illegitimate and should be repealed.
• The international community should do more to promote dialogue and debate about the universality of freedom of expression.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
email: toby@law-democracy.org
tel: +1 902 997-1296
www.law-democracy.org

The Middle East and North Africa remains one of the world’s most troubled media environments, despite some gains since 2011. Today the Centre for Law and Democracy (CLD), International Media Support (IMS) and Maharat Foundation are unveiling a Statement on Media Regulatory Reform in the Middle East and North Africa: Criminal Restrictions on Media Content. The Statement is the product of a workshop in Beirut, Lebanon, from 24-25 April, and was adopted by experts from Egypt, Lebanon, Libya, Morocco, Tunisia and Yemen.

The Statement highlights the major types of problems in the region in terms of criminal law restrictions on what may be published or disseminated through the media, and calls on countries to conduct comprehensive reviews of their criminal law rules affecting freedom of expression. It also provides specific recommendations on a number of thematic areas, including that laws protecting national security should be clearly defined, that imprisonment is never an appropriate penalty for defamation and that hate speech laws should only prohibit incitement to discrimination, hostility or violence

Click here to read the Statement in English
Click here to read the Statement in Arabic

“This Statement reflects a strong consensus among experts from the region regarding the main criminal law problems,” said CLD Executive Director, Toby Mendel. “It also charts a clear path forward in terms of the basic reform efforts that need to take place.”

The workshop built on an earlier workshop hosted by IMS in Casablanca in November 2013, and is one of a series that will take place across the Middle East this year.

“By facilitating dialogue on the major freedom of expression challenges, we are advancing a common regional advocacy strategy,” said Virginie Jouan, IMS Programme Manager for Tunisia and Morocco.
“The principles espoused in the Statement reflect a shared view of the major problems in our common media landscape,” said Roula Mikhael of Maharat. “We look forward to working with our colleagues from around the region to provide mutual support in solving these pressing challenges.”

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 992-1296
www.law-democracy.org
Twitter: @law_democracy

Virginie Jouan
Programme Manager, Middle East and North Africa
International Media Support (IMS)
Email: vj@i-m-s.dk
Tel: +45 8832 7000
www.i-m-s.dk
Twitter: @forfreemedia

Roula Mikhael
Executive Director
Maharat Foundation
Email: roula.mikhael@maharatfoundation.org
Tel.: 009613612413 (mobile)
www.maharatfoundation.org

The Centre for Law and Democracy (CLD), working with Democracy Reporting International (DRI), has recently published a Briefing Paper on International Standards on Transparency and Accountability. The Paper is one of a series which focuses on the main foundations of democracy. These, in turn, are drawn from a 2011 DRI report outlining the key components of a strong democracy, International Consensus: Essential Elements of Democracy. This Paper contributes to standard setting, which is vital to the development of human rights. Without an accurate yardstick for good law and policy, it would be difficult to assess where States are succeeding and where they are failing.

Click here to read the Paper

“This Paper provides a succinct but clear explanation of the international law foundations for transparency and accountability, as well as the relationship between them,” said CLD Executive Director, Toby Mendel. “Most observers agree that these notions are closely intertwined, but the precise nature of their relationship is complex and not always well understood.”

The Briefing Paper provides readers with a concise and yet well-documented overview of the topic. It starts by providing definitions of transparency and accountability, two concepts which are mutually supporting but also overlapping. The main part of the Paper outlines the key international law foundations that underlie transparency and accountability, with a particular focus on the more specific rules underpinning the right to information.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 992-1296
www.law-democracy.org
Twitter: @law_democracy

UNESCO has recently published a book on community radio prepared by the Centre for Law and Democracy (CLD), Tuning into development: International comparative survey of community broadcasting regulation. The book focuses on international standards govenring the regulation of community radio as well as the legal framework for this in some thirty countries from different regions of the world. It also includes a set of recommendations on better practice regarding the regulation of community broadcasting.

Click here to read the Report

“We believe that this book fills an important gap in the literature,” said CLD Executive Director, Toby Mendel. “There has been a lot of discussion about the need for enabling regulations for community broadcasting, and a certain amount of standard-setting, but this is the first really comprehensive analysis of comparative law in this area.”

Part I of the book provides an overview of relevant international standards, both of a general nature and focusing more specifically on community broadcasting. Part II provides an overview of the way the community radio sector has developed in different parts of the world. Part III, the longest, analyses the legal environments for community broadcasting broken down into three categories, namely Recognition, Definition and Form; Access and Licensing; and Funding and Sustainability. Information within each category is organised by region – Africa, Asia, Europe, Latin America and Other – and then country. Part IV looks at developing regulatory environments, while Part V contains the recommendations.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

The Centre for Law and Democracy (CLD) has done an analysis of the latest draft of the Access to Information Law being prepared by the Palestinian authorities which indicates that the law has been substantially weakened since our last analysis in December 2013. Using the RTI Rating (www.RTI-Rating.org), the December draft obtained a score of 92 points out of a possible 150, which has now declined to just 85 points, well into the bottom half of all countries globally with right to information (RTI) laws.

Click here for the Comments
Click here for an unofficial translation of the draft Law
Click here for a version of this Press Release in Arabic

“We welcome the fact that Palestine is preparing a right to information law,” said CLD Executive Director, Toby Mendel. “But it is very unfortunate that the draft has been weakened, rather than strengthened, since our last analysis, especially given the strong trend globally towards adopting stronger RTI laws.”

The draft Law does relatively well in terms of scope of application and is moderately strong in terms of the regime of exceptions and promotional measures. It is, however, weak in terms of the right of access, proactive disclosure, requesting procedures, appeals and sanctions and protections. Some of the key recommendations in the analysis include the following:
➢ The scope of information subject to proactive disclosure should be elaborated in far more detail.
➢ Significantly more detailed and robust rules on how requests are to be processed should be added to the law.
➢ A public interest override should be added to the law to ensure that information of important public interest is disclosed and the overall time limit of 20 years for security and foreign information should be extended to all exceptions.
➢ The independence and powers of the oversight Commission should be substantially enhanced.
➢ Protection should be provided for the good faith disclosure of information pursuant to the law.

The analysis of the draft Palestinian Access to Information Law, along with the unofficial translation upon which the analysis was based, is available at:

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

Strong demand for information is critical to successful implementation of the right to information. It helps both motivate public authorities to undertake necessary supply side measures, and identify and address weaknesses. To promote implementation of Indonesia’s Law 14/2008 on Public Information Disclosure, the Centre for Law and Democracy (CLD) and the Indonesian Alliance of Independent Journalists (AJI) undertook a major training programme to build the capacity of key stakeholders – mainly journalists and civil society groups – to use the law. CLD and AJI are today releasing a report on the over 200 requests that were made as part of this programme.

Click here to read the Report in English
Click here to read the Report in Bahasa

The programme began with a training of trainers in Jakarta and continued when those trained returned to their home provinces of West Java, South Sumatra, West Nusa Tenggara and North Sulawesi to carry out local trainings for journalists and civil society groups. A key element of the programme was to work with participants to make requests for information relating to their work and, where necessary, to lodge internal complaints and then appeals to the provincial information commissions.

“We were delighted with the way participants embraced the programme and actively pursued requests.” said Toby Mendel, Executive Director of CLD. “This is precisely the sort of engagement that will drive success implementation of Indonesia’s RTI framework.”

The exercise demonstrated that Indonesia’s public bodies still have a long way to go in terms of implementation. Only 34% of requests resulted in full disclosure of the information, while the same number resulted in oral or silent refusals. Several appeals in these latter cases are still ongoing.

“Although the exercise revealed significant problems, we are optimistic about the right to information in Indonesia over the longer term”, said Eko Maryadi, President of AJI Indonesia. “Civil society groups are committed to advancing this vital human right.”

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy

As part of an ongoing programme to promote the right to information (RTI) in Indonesia, the Centre for Law and Democracy (CLD) and the Indonesian Center for Environmental Law (ICEL) today released a Training Manual for Public Bodies on Implementing Law 14 of 2008 Regarding Openness in Public Bodies. The Manual has already been used to conduct various training sessions for public officials, for example in Jakarta and the Indonesian province of Banten.

Click here for the Training Manual in English
Click here for the Training Manual in Bahasa Indonesian

“The Manual is an invaluable resource both for conducting training courses and as a reference tool for officials tasked with implementing the RTI law,” said Toby Mendel, Executive Director of CLD. “Although it was specifically designed for use in Indonesia, it could easily be adapted for other contexts.”

The Manual offers practical instructions on how to fulfil key RTI responsibilities, including processing requests for information, categorising and managing information, applying exceptions, resolving disputes over information disclosure and developing a longer-term action plan for implementation activities. It also offers background on key conceptual issues such as the importance of transparency to democratic accountability and the benefits that openness brings. In its essence, the Manual provides a useful roadmap for officials tasked with implementing Indonesia’s RTI law.

“This Manual contains a full discussion of the legal obligations that flow from Law 14 of 2008.” said Dessy Eko Prayitno, Researcher with ICEL. “We look forward to using this tool to further promote the right to information in Indonesia.”

More information on CLD’s work in Indonesia is available here.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
+1 902 448-5290
www.law-democracy.org
@law_democracy

In October 2013, Sierra Leone became the 96th country in the world, and the 12th country in Africa, to pass an RTI law. An analysis by the Centre for Law and Democracy (CLD) rates the Right to Access Information Act as tied for the 5th strongest in the world. The law scored 124 out of a possible maximum of 150 points on the RTI Rating, an internationally renowned analytical tool developed by CLD and its partner organisation, Access Info Europe, which has been applied to every national RTI law globally.

Click here for the RTI Rating Scoresheet
Click here for the Law

“We congratulate Sierra Leone on passing such a strong law,” said Toby Mendel, Executive Director of CLD. “The challenge now will be to implement it effectively, something that has been a challenge in many African countries.”

One of the key strengths of the Act is its broad scope, which covers all types of information held by a wide range of public bodies and even some private bodies. The Act also features strong promotional measures, which will be crucial to its successful implementation. It is also positive that many areas where the Act failed to score points on the Rating could be remedied relatively easily through the adoption of strong regulations.

However, there are also some more serious problems with the Act. These include the lack of a rule ensuring that its access provisions will be interpreted broadly and its exceptions interpreted narrowly, several exceptions which are overly broad, and a failure to provide that its rules trump conflicting legislation to the extent of any conflict.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

The Centre for Law and Democracy (CLD) and the Indonesian Center for Environmental Law (ICEL) are today releasing two sets of guidelines designed to assist Indonesian public bodies overcome the major challenges associated with implementing the right to information (RTI) legislation Indonesia adopted in 2008. One guideline provides an overall roadmap of what public bodies need to do to implement the law and the other provides guidance on the difficult issue of applying exceptions.

Click here for the Guide on Applying Exceptions in English
Click here for the Guide on Applying Exceptions in Bahasa
Guide for Implementing Law 14/2008 on Public Information Openness

“While many Indonesian public bodies express a willingness to embrace transparency, the results suggest a lack of understanding of how to implement the RTI law,” said Dessy Eko Prayitno, Researcher with ICEL. “70% of appeals to the Central Information Commission are the result of procedural irregularities, suggesting that robust implementation systems have not yet been put in place.”

The Guidelines for Implementation: Implementing Law 14/2008 on Public Information Openness contain a detailed overview of the obligations Law 14/2008 places on public bodies, along with practical guidance as to how to meet those obligations. The Guide on Applying Exceptions offers step-by-step instructions for information officers and other officials on how to determine whether or not the regime of exceptions applies to information which has been the subject of a request. Both sets of guidelines are being distributed to public bodies across Indonesia as part of a broader campaign to promote RTI in that country.

“Understanding and applying the regime of exceptions is a very difficult challenge for public bodies tasked with implementing RTI laws,” said Toby Mendel, Executive Director of CLD. “We hope that these guidelines will provide a useful framework for those who have to undertake this task.”

More information on CLD’s work in Indonesia is available here.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
+1 902 448-5290
www.law-democracy.org
@law_democracy

The Centre for Law and Democracy (CLD) and the International Federation of Journalists (IFJ) have prepared a Note analysing the Right to Access Information Law, No. 11 of 2013, adopted recently by the government of the Kurdistan Region of Iraq. The Law is a relatively progressive piece of legislation, garnering 98 points out of a possible 150 on the RTI Rating (www.RTI-Rating.org), which would put it in 28th place globally out of 95 countries.

Click here for the Analysis
Click here to read the press release in Arabic

“It is very welcome that the Kurdistan Region has adopted this law, joining other democracies by putting in place a system for ensuring transparency in government,” said Toby Mendel, Executive Director, Centre for Law and Democracy. “While the Law is strong, there are a number of areas where it could still be improved.”

Areas for improvement include the following:
• The procedures for processing requests for information are too brief and overview in nature.
• Not all exceptions are harm tested and there is no procedure for consulting with third parties.
• There are no sanctions for obstruction of access or protection for good faith disclosures pursuant to the law.
• The Law fails to create a dedicated oversight body for information appeals (such as an information commission), instead allocating this task to the existing Human Rights Commission in Kurdistan Region.

“We welcome the adoption of this law in the Kurdistan region which will provide important protection for journalists so they can report on the performance of government and other public institutions without fear of punishment or reprisal,” said IFJ President Jim Boumelha.

For more information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

An assessment of Palestine’s draft Law on the Right of Access to Information by the Centre for Law and Democracy using the RTI Rating (www.RTI-Rating.org) has found that the draft would obtain a rather modest score of 92 points out of a possible 150, around the middle of the 95 countries globally with right to information (RTI) laws.

“The Arab world lags well behind other regions of the world in terms of adoption of RTI legislation,” said Toby Mendel, Executive Director of the Centre for Law and Democracy. “While we welcome this Palestinian initiative, we also note that the draft needs to be significantly improved if it is to provide a strong basis for realisation of the RTI.”

Click here to read the Recommendations
Click here to see the RTI Rating for Palestine
Click here to read the draft Law

A Note prepared by CLD makes a number of recommendations to bring the draft Law into line with international standards. Some key recommendations include the following:
• Requesters should not have to provide reasons for their requests.
• Public authorities should be required to provide assistance to requesters.
• All exceptions should include a harm test and public interest override.
• The independence of the oversight body, the Commissioner General of Information, should be enhanced.
• Officials should be protected where they disclose information in good faith pursuant to the law.

CLD urges relevant Palestinian actors, and in particular the Council of Ministers, to bring the draft Law more fully into line with international standards before it is passed.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

Specialist right to information organisations Access Info Europe and Centre for Law and Democracy led on the drafting of a set of recommendations for progressive improvements to the right to information (RTI) which should be introduced by governments participating in the Open Government Partnership.

These recommendations form the right to information (RTI) chapter of the Open Government Guide, which was released at the Open Government Partnership Summit in October 2013.

Click here to read the Recommendations

In addition to the key recommendation that States should adopt a law giving effect to the right to information which meets international standards, the chapter makes a number of recommendations for initial, more substantial, most robust and innovative steps to give effect to this fundamental right, including:

» Putting in place the required institutional structures for implementation of the law
» Expanding the scope of proactive publication
» Undertaking robust promotional measures, including by raising public awareness about RTI
» Implementing ‘transparency by design’, including by using digital technologies to integrate RTI into all stages of information preparation and processing

The Open Government Guide aims to help governments achieve key OGP goals by highlighting practical, measurable, specific, and actionable steps that governments can take across a range of cross-cutting areas. It was developed by the Transparency and Accountability Initiative along with expert organisations for each of the topics.

Access Info and the Centre for Law and Democracy call upon all OGP Participating States whose RTI laws achieve a score of less than 100 points on the RTI Rating, or which have not yet adopted an RTI Law, to include a commitment in their upcoming (second round) Action Plans to adopt or revise their RTI laws to bring them into line with international standards, as recommended in the RTI Chapter of the Open Government Guide. We also call on civil society to use the RTI Chapter of the Guide to assess the performance of their governments in this area and to make relevant recommendations for RTI implementation or law reform.

For further information, please contact:

Toby Mendel
Centre for Law and Democracy
e-mail: toby@law-democracy.org
tel: +1 902 412-0872
www.law-democracy.org
@law_democracy

The Trans-Pacific Strategic Economic Partnership Agreement (TPP) has been a magnet for controversy since its inception, largely due to the excessive secrecy in which it is being negotiated and rumours that its intellectual property provisions would threaten Internet freedom. Today, the Centre for Law and Democracy has released an Analysis which confirms that these fears are well founded and highlights the many proposals in the draft treaty which would harm freedom of expression online. The Analysis is based on a draft version of part of the TPP released by Wikileaks, said to be current as of the conclusion of the August round of talks.

Click here to read the Analysis
Click here to read the leaked draft Chapter

“Given the controversial nature of many provisions in the draft TPP, there is a clear need for far greater transparency and consultation in the negotiations,” said Toby Mendel, Executive Director of CLD. “People deserve to know if their elected officials are pushing to implement plans that are harmful to the Internet and freedom of expression.”

The more serious problems in the leaked draft include the following:
• Australia, Brunei, Mexico, New Zealand, Peru, Singapore and the United States want to force third party intermediaries to put in place highly problematical anti-piracy measures, including schemes to terminate access to users found to be infringing copyright, or risk liability for acts undertaken by their users.
• Australia, Mexico, Peru, Singapore and the United States are supporting measures which, under the guise of protecting digital locks, will broadly criminalise even legitimate circumvention tools.
• Australia, Chile, Mexico, Peru, Singapore and the United States want to extend already excessive copyright terms for an additional twenty to fifty years.

Negotiating States aim to finalise the treaty at the next round of negotiations in Singapore, which start on 7 December. CLD calls on those States to open up the process to the public, to be forthright with their citizens about their negotiating positions and to ensure that the final text respects the right to freedom of expression.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
Tel: +1 902 448-5290
www.law-democracy.org
@law_democracy

The Centre for Law and Democracy (CLD) is concerned that a secrecy law about to be adopted by Japan’s parliament signally fails to respect international standards and, in particular, the standards set out in the Global Principles on National Security and the Right to Information (The Tshwane Principles), which CLD participated in drafting.

“We respect the right of Japan, and indeed every State, to protect genuinely sensitive national security information,” said CLD Executive Director, Toby Mendel. “But this law fails to define national security in a sufficiently clear and precise manner, and also grants too much power to officials to classify information as secret.”

It is a fundamental principle of international law that limitations on the right to access information held by public authorities must be set out clearly and narrowly in law. Principle 3(a) of the Tshwane Principles states: “Prescribed by law. The law [setting out restrictions on access] must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to understand what information may be withheld, what should be disclosed, and what actions concerning the information are subject to sanction.” Principle 3(c) elaborates: “Protection of a legitimate national security interest. The narrow categories of information that may be withheld on national security grounds should be set forth clearly in law.”

The draft secrecy law being considered by the Japanese parliament signally fails to meet this standard, instead providing a list of 23 vaguely worded categories of information which may be declared secret on national security grounds.

The law also allocates an undue measure of discretion to the heads of public authorities to classify information. Principle 4(d) of the Tshwane Principles clearly rules out such measures, providing: “In no case may the mere assertion, such as the issuing of a certificate by a minister or other official to the effect that disclosure would cause harm to national security, be deemed to be conclusive concerning the point for which it is made.”

The Centre for Law and Democracy urges lawmakers in Japan to reject the draft secrecy law in its current form and to make it clear that no law which fails to conform to international standards will be adopted.

The Tshwane Principles are available at: http://www.law-democracy.org/live/national-security-principles-launched/.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

A key element of the OGP process is that the country-level action plans should be developed in a broadly consultative manner with local stakeholders. The third common expectation of OGP Participating Countries, as spelled out in the June 2012 Articles of Governance, is that States should:

Develop country action plans through a multi-stakeholder process, with the active engagement of citizens and civil society

Addendum C of the Articles of Governance sets out in some detail the minimum conditions for appropriate consultation, essentially as follows:
• The consultation process and timeline should be set out in advance.
• There should be broad consultations with national stakeholders.
• A summary of the consultation process and submissions should be made available.
• Activities should be undertaken to raise public awareness.
• A variety of consultative mechanisms should be employed, including both online and in-person mechanisms.
• A forum for regular multi-stakeholder consultation should be employed.

The process of consultation with external (i.e. non-government) stakeholders around the first Canadian Action Plan – which consisted essentially of an open online consultation based on three questions for participants to answer, a Twitter Town Hall and one teleconference call with the members of the Advisory Panel on Open Government – has been criticised for failing to respect either OGP rules or minimum established standards for consultation. These Proposals by the Centre for Law and Democracy (CLD) and Publish What You Pay, Canada (PWYP-Canada), aim to help ensure a more robust consultation around the development of Canada’s second OGP Action Plan.

Guiding Principles
A number of principles should guide a robust consultation process. CLD and PWYP-Canada have identified the following key consultation principles:

Transparent
The consultation process should be transparent. This implies, among other things, that the government should make it clear, from the start, how the process will work, including the various steps that will be taken and their respective timelines. It also means that the process around submissions should be open, so that submissions should be posted online (this should be clear from the outset, so that everyone understands that their submissions will be made public). It also implies that the government should make proposed content publicly available, as soon as possible, for purposes of public comment on that content. This should be an iterative process, with content being updated regularly.

Inclusive
The consultative process should be designed so as to be as inclusive as possible, taking into account time and resource constraints. This means that there should be different ways of reaching out to different stakeholders, so as to promote the widest possible engagement. Ideally, stakeholders should be involved from the design stage, so that the process is structured from the beginning in a manner that promotes widespread engagement.

Genuine
The consultative process should be genuine in the sense that those engaging in it have a realistic expectation that their views will be taken into account. For this to be the case, the consultation must be real in the sense that the government does not approach it with a fixed, pre-set range of priorities. There must be a real possibility of the consultations impacting on the subject matter of the consultations. This also implies that sufficient context is made available to those participating in the consultation so that they may appropriately and realistically tailor their input to the specific policy process.

Concrete Proposals for Canada’s Second Action Plan

Process
There should be various elements to the consultation process. It is appropriate, indeed useful, to have an initial brainstorming element, but the process should include an opportunity for interested stakeholders to provide feedback on concrete proposals (i.e. a draft Action Plan). Ideally, this should be an iterative process in the sense that stakeholders have the opportunity to provide comments on an initial draft and then again on a more final version which reflects their original input. As a practical suggestion, more focused discussions on key issues could be considered as part of the iterative process (i.e. the scope of consultation could be narrowed as the process moves forward, so as to focus on key issues).

There should be a variety of mechanisms for giving input. Virtual tools – such as online opportunities to provide substantive feedback and discussions via social media, including Twitter – are important, but they are not sufficient. At a very minimum, there should be an ongoing dialogue with the Advisory Panel, allowing for ongoing, i.e. repetitive, input into the Action Plan as it is developed. The substance of Advisory Panel discussions should be posted online, allowing for interested stakeholders to submit responses and feedback, providing one means of ongoing input.

There should also be face-to-face discussions, as required by the OGP. In the Canadian context, this implies discussions in a number of different geographic locations across the country. To save time and effort, consideration could be given to attaching these to other ongoing events/consultations.

Transparency
The government should post proposals for the entire consultative process at an early stage, allowing interested stakeholders to comment on the proposed process.

Substantive content, for example in the form of revised versions of the Action Plan, should be posted online as frequently as possible, allowing for iterative feedback, at least online. All submissions from external stakeholders, however received, should be posted online. To enable this, it should be clear in advance that this will be the case. As noted above, at least summaries of Advisory Panel discussions should be made available online, allowing for others to be involved indirectly in this process.

The government should also provide an outline of its responses to external input, alongside revised versions of the Action Plan, so that stakeholders understand how their input has been taken into account. Where important input (e.g. as measured by the degree of repetition or extent of implications) has not been taken into account, reasons should be provided.

For further information, please contact:

Toby Mendel
Centre for Law and Democracy
www.law-democracy.org
e-mail: toby@law-democracy.org
tel: +1 902 412-0872

Intense campaigning by Irish and international civil society organisations has resulted in an important policy reversal by the Irish government. The Minister for Public Expenditure and Reform, Brendan Howlin, has withdrawn, for now at least, an amendment to the Freedom of Information Bill 2013 which threatened to charge multiple up-front fees for requests deemed to include more than one question.

Welcoming the withdrawal of the proposed amendment to expand the charging regime, Access Info Europe and the Centre for Law and Democracy today wrote to Minister Howlin urging him to go further and abolish the existing €15 per request, stating that this fee clearly violate international standards.

Click here to read the Letter

Drawing on the data captured in the Global RTI-Rating website, Access Info and CLD note that charging up-front fees is both a breach of international standards regarding the right to information and out of step with other countries. Ireland is the only country in Europe to have mandatory up front charges for all FOI requests (Malta permits such charges but these are not routinely applied). Globally, only 16 out of 95 countries (17%) charge up-front fees. The problem is exacerbated by the level of the Irish fee which, at €15, is higher than any other country.

In their letter, the two organisations note that up-front fees are not permitted by the Council of Europe Convention on Access to Official Documents, which has yet to be ratified or even signed by Ireland. Charges for requests place unacceptable obstacles in the way of access to information, which has been recognised as a fundamental right by the European Court of Human Rights and the UN Human Rights Committee.

The two organisations also called on Minister Howlin to do away with fees for search and retrieval of information. Arguments justifying the charging of costs other than photocopying and postage charges are flawed on three grounds. First, information held by public authorities belongs to the public, having been created with taxpayers’ money. Second, the cost of responding to requests is heavily correlated with the efficiency of public bodies’ record management systems; it is not appropriate to pass this on to members of the public exercising their right to know, which effectively rewards poor record management practices. Third, charging high fees exerts a significant chilling effect on making requests, and there are strong public interest arguments against this, due to the significant benefits which flow from transparency. There is also the importance in a democracy of the public knowing what its government is doing, something which it is impossible to put a price tag on.

The threat to increase fees has raised serious concerns about Ireland’s commitment to the ideals of the Open Government Partnership (OGP). Doing away with up-front and search and retrieval fees for information requests would be a welcome inclusion in Ireland’s national OGP Action Plan and a clear signal of the government’s commitment to increase transparency.

For further information, please contact:

Toby Mendel
Centre for Law and Democracy
www.law-democracy.org
e-mail: toby@law-democracy.org
tel: +1 902 412-0872