Centre for Law and Democracy

Copyright law is among the most contentious issues regarding freedom of expression today. Artists claim that rampant piracy is destroying their ability to earn a living, while audiences accustomed to the free-flowing digital age feel stifled by copyright’s limitations. Against this backdrop, major conflicts have taken place to prevent attempts by rights holding lobbies to pass draconian rules which would impose harsh sanctions – including jail terms and even cutting off Internet access – for copyright breaches.

Click here for the full Report

In a major Report released today, Reconceptualising Copyright: Adapting the Rules to Respect Freedom of Expression in the Digital Age, CLD examines the current copyright rules from the perspective of freedom of expression. The Report finds that the rules signally fail to respect basic freedom of expression standards and proposes dramatic changes to bring copyright into line with its core purpose of promoting expression.

“Despite all of the rhetoric, there have been few attempts to conduct a rigorous analysis of copyright from the perspective of freedom of expression,” said Toby Mendel, Executive Director of CLD. “We are proposing some major changes to the current regime to provide for an appropriate balance between the need for authors to earn a living and to bring the rules into line with the needs of the digital age in which we live.”

Key recommendations made in the Report include:
• A clear distinction needs to be made between author’s moral rights and the economic protection afforded by copyright law.
• Economic copyright protection should apply only where authors specifically assert it and where it is necessary to incentivise creation.
• The duration of economic copyright protection should be significantly reduced and should be based on market conditions rather than the life of the author.
• Creative derivative uses of existing works should benefit from broad protection.
• Sanctions for copyright infringement should not include loss of access to the Internet and criminal sanctions should be limited to commercial-scale breaches.

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

Today, the Freedom of Information Advocates Network (FOIAnet) launched a major global analysis of the development of the right to information (RTI) movement, broken down by region. The publication follows FOIAnet’s celebration of its 10th anniversary on International Right to Know Day, 28 September 2012.

The Update, which was co-authored by different human rights advocates for each of the seven regions it covers, presents the very different challenges, developments and experiences of civil society advocates for RTI in each region of the world. The Update also describes the key struggles that have taken place in each region, successes and failures, and lessons learned, along with a selection of case studies that illustrate how RTI has been promoted within each region.

Click Here to Read the Analysis

“This is the very first time FOIAnet has produced a major publication,” said Toby Mendel, Chair of FOIAnet. “This is a wonderful way to build on our anniversary 10-10-10 Statement: Achievements, Challenges and Goals on the 10th Anniversary of the Freedom of Information Advocates Network (FOIAnet).”

A key goal of the Update is to foster a better understanding among FOIAnet’s members and others about civil society developments regarding RTI in the different regions of the world. The Update also aims to help RTI advocates by sharing information about successful strategies for tackling challenges, to foster better understanding and to stimulate international dialogue among the different regions, and to draw attention to the global nature of the RTI movement so as to further strengthen it.

Lydia Medland, lead editor of the report, said, “The report shows that advocates still have a long way to go to see their goal achieved of a universal right to information, however, it also clearly transmits the strength of the movement and their ability to effectively confront obstacles to change.”

Disagreements over the scope and nature of copyright rules have made it one of the most high profile battlegrounds regarding issues affecting freedom of expression. Around the world, rights-holding lobbies are pushing for increasingly draconian measures to combat copyright infringements, while others are calling for copyright law to be significantly revised to align it with modern digital realities. Both sides claim international guarantees of freedom of expression support their causes. On 24 June 2013, the Centre for Law and Democracy (CLD), the Centro de Estudios en Libertad de Expresión y Acceso a la Información (CELE) and Fundación Via Libre (FVL) held a workshop in Buenos Aires, Argentina, to discuss problems with the international framework for copyright and possible solutions.

The workshop, which was attended by participants from across Latin America, featured presentations by Michael Karanicolas of CLD and Beatriz Busaniche of FVL, and was moderated by Eduardo Bertoni of CELE. A report on copyright by CLD with draft recommendations served as background material for the workshop.

Click here for a Summary of the draft Report in English
Click here for a Summary of the draft Report in Spanish

“Copyright law needs to be fundamentally reformed to reflect a better accommodation of freedom of expression in all of its aspects,” said Toby Mendel, Executive Director of CLD. “We hope that our report, which will be finalised soon, will help situate the debate about copyright reform more firmly within a human rights framework.”

The core challenge of copyright from a freedom of expression perspective is that its protections help foster creative output, while at the same time limiting access to expressive material. International copyright rules no longer strike an appropriate balance between these two interests, including because of the fundamental changes brought about by digital information technologies.

On 2 June 2013, Jordan’s Press and Publications Department issued an order blocking hundreds of websites due to their failure to register with the government. The order drew international condemnation, mainly because it is the first high-profile case of implementation of Jordan’s new legal regime for the print media, which was amended in 2012 to extend onerous registration and other requirements to the Internet. Today, the Centre for Law and Democracy released Comments on the Law Amending the Press and Publications Law of 2012, which highlights the severe problems with these amendments from the perspective of freedom of expression.

Click here to read the Analysis

“These amendments are at best a clumsy attempt to regulate the Internet,” said Toby Mendel, Executive Director of CLD. “If they were really properly implemented, they would threaten the very viability of the Internet in Jordan, as they require the authorities to block access to most social media websites.”

The main problems identified in the Comments include the following:
• The scope of the Law is extremely broad, inasmuch as it applies to any website that hosts any comment on current affairs in Jordan.
• The Law imposes onerous registration requirements on ‘news websites’.
• Websites which breach the law, including by failing to register, are subject to mandatory blocking provisions applied by a government department.
• Websites must record information about all users who submit comments.
• The Law treats comments submitted by users as journalistic content authored by the website, effectively forcing websites to vet all user-generated content.

CLD calls upon the Jordanian government to introduce significant amendments to the 2012 amendments to the Press and Publications law to bring it into line with international human rights standards, including by repealing the registration, moderation and tracking obligations for websites, as well as the blocking rules.

The Centre for Law and Democracy is today releasing a Note analysing the freedom of expression provisions in the new draft Constitution for Tunisia, dated 1 June 2013. As the foundational document for the system of governance in post revolutionary Tunisia, it is very important that the Constitution provide strong guarantees for human rights and particularly those rights, including freedom of expression, which were roundly abused under the previous regime.

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

“We welcome the strong guarantees for freedom of expression and information in the new draft Constitution,” said CLD Executive Director, Toby Mendel. “We do, however, recommend further changes to bring them fully into line with international standards.”

Key recommendations in the CLD Note include the following:
• The regime for restrictions on freedom of expression and information should be consolidated into one provision to avoid duplication and potential confusion.
• Restrictions on expression and access to information should be permitted only where they are provided by law and are necessary to protect an overriding interest.
• The Constitution should envisage two independent bodies in the information sector – a broadcast regulator and an access to information oversight body – rather than a single body with an extremely broad mandate, as the draft currently provides for.

CLD urges the relevant Tunisian authorities and stakeholders to do what they can to promote further reform of the draft Constitution to bring it into line with international standards.

The Global Climate Fund (GCF), a new international financial institution (IFI) which aims to use lending to promote compliance with the United Nations Framework Convention on Climate Change (UNFCCC), is proposing to adopt an information disclosure policy. The Global Transparency Initiative (GTI) has prepared a Note on Better International Practices on Access to Information for the GCF Board, which will discuss this issue at its next meeting in Songdo, Republic of Korea, 25-28 June 2013.

Click here to read the Note

“The GTI welcomes the fact that the background document calls on the GCF Board to adopt a strong openness policy,” said CLD Executive Director, Toby Mendel. “We have prepared this Note as an initial input into the process, with a view to steering the Board towards better openness standards from the very beginning.”

A policy paper prepared for the GCF Board, Information Disclosure, including Webcasting, proposes the adoption of an interim policy, to provide clear rules on information disclosure in the short term, followed by the adoption of a full policy, based on better practice at other IFIs, after a process of consultation with civil society. The GTI supports this approach. At the same time, the Note highlights some problems with the standards quoted in the policy paper, most importantly in relation to the regime of exceptions. This is an area where IFI information policies still lag far behind better practice national right to information laws.

Globally, there has been significant progress in terms of strengthening IFI information policies over the last five to ten years. We urge the GCF to continue this process, taking advantage of the gains while also avoiding the shortcomings of existing IFI policies. We specifically call on the GCF to ensure that the policy has a narrow regime of exceptions which is limited in scope to what is needed to protect legitimate interests against harm.

The launch of Global Principles on National Security and the Right to Information (Tshwane Principles) today was the culmination of a multi-year consultation process to set out a careful balance between protecting genuine national security interests and respecting the right to information. The consultation process involved 100s of individuals and 22 key support institutions, including the Centre for Law and Democracy (CLD).

Click here full copy of the principles

“The Tshwane Principles build on earlier work, including the Siracusa Principles and the Johannesburg Principles,” said CLD Executive Director, Toby Mendel. “But they take this work forward by updating those documents and in terms of their level of detail and sophistication.”

The Principles reaffirm many established standards regarding the right to information, but they also break important new ground. While they avoid defining national security directly, Principle 9 provides a clear statement of the categories of information that may qualify as falling within the scope of national security. Importantly, Principle 10 lists a number of categories of information in relation to which there is a high or overriding presumption of openness.

Now that the process of developing the Tshwane Principles has come to an end, the far more difficult task of promoting their implementation at the national level will start. The Centre for Law and Democracy urges all stakeholders to contribute to this process, including by disseminating the Principles widely. For its part, CLD will now start to integrate the Principles into its research, capacity building and advocacy activities.

Centre for Law and Democracy calls on the Ukrainian Parliament to adopt Draft Law No. 0947 before summer recess and align Ukrainian legislation with the new information laws that were passed in 2011. Draft amendments have been pending in the Parliament since May 2012 and are necessary for the proper implementation of the landmark 2011 Law of Ukraine on Access to Public Information, which has been recognized as one of the best right to information laws in the world.

Draft Law No. 0947 was prepared in 2011 by civil society experts and was submitted to the parliament by the Government in May 2012. It includes amendments to more than 55 legislative acts and provides, among others, the following important changes:

• Strengthening administrative sanctions for violation of the Access to Public Information Law, in particular with regard to infringement of the rules on proactive publication and consideration of the public interest;
• Removing the presumption that all critical comments about a person are false, unless the commentator (e.g. journalist) proves otherwise, which has had a chilling effect on the media;
• Providing public access to meetings of representative authorities (the national parliament and local councils);
• Making information about activities of local authorities open, including their decisions and meetings, and increasing the transparency of information about budget expenditures and management of public property, with a prohibition on restricting access to general and detailed plans of cities and towns;
• Improving transparency of public procurement and privatization processes and statistics, as well as of information held by financial institutions and monopolies;
• Publication of annual declarations of assets, income and expenses of public officials on the official websites;
• Bringing legal provisions on state secrets in line with the Access to Public Information Law, particularly with regard to the public interest test;
• Balancing the right to privacy with right to information guarantees by amending the Data Protection Law and the Law on Archives.

Free access to information held by public entities is a fundamental human right. It is an important guarantee that facilitates a number of other human rights and freedoms in a democratic society and helps to prevent and detect corruption and other official wrongdoing.

Centre for Law and Democracy therefore supports speedy adoption by the Ukrainian Parliament of the Draft Law No. 0947 in its final reading and its signing into law by the President. This is a crucial next step in guaranteeing the right to information in Ukraine and to set a positive example for other countries in the region.

Four major draft laws relating to media reform that address the press, electronic press, a national press council and professional journalists are currently being considered in Morocco. Today, the Centre for Law and Democracy released an Analysis which, while noting positive elements in the draft laws, urged that further changes be made before they are passed into law.

Click here to read the Analysis

Some of the more serious concerns identified include:
• Membership in the National Press Council is mandatory, effectively making the Council a gatekeeper regarding who can be a journalist.
• Moral character and experience requirements are imposed on journalists that represent a bar to joining the profession.
• It is an offence, with the possibility of a significant fine, to criticise foreign leaders or the Moroccan monarchy, or to make statements that harm Islam or Morocco’s territorial integrity.
• Defamation remains a criminal offence, with heavier fines for defaming public officials.
• There is a system for emergency blocking of websites containing defamatory material.

“We welcome the fact that Morocco is involved in a process of reforming its media laws,” said CLD Executive Director, Toby Mendel. “More work is needed, however, to ensure that the laws respect international standards and the right of the media to operate independently.”

The draft laws were recently the subject of public consultations, including a conference on World Press Freedom Day, 3 May 2013, attended by the Centre for Law and Democracy. CLD has provided comments to the Ministry of Communication, and we urge the government to incorporate our recommendations before the laws are adopted.

The spread of the Internet has led to an unprecedented flowering of expression, democratising the flow of information and allowing ordinary people to access an incredible diversity of news and ideas. By the same token, the Internet has challenged the ability of governments to control information, and some have responded by adopting repressive laws. The September 2012 amendments to Jordan’s Press and Publication Law, which imposes strict registration requirements on news websites, are a good example of this. On 2 June 2013, Jordan’s government used the legislation to block over 300 websites on the basis that the websites had not registered.

“These blocking orders are a flagrant violation of freedom of expression and should be rescinded immediately,” said Toby Mendel, Executive Director of CLD. “Furthermore, the root cause of the problem, the 2012 amendments to the Press and Publication Law, should be repealed; even if they are not formally imposed, they exert a chilling effect on online speech.”

In addition to imposing significant costs, the registration requirements require news websites to appoint an editor-in-chief, who must have at least four years’ standing as a member of the Jordanian Press Association. The amendments also require website owners to vet any comments that their users post for offensive material and for “truthfulness”, or risk liability. These rules breach the right to freedom of expression as protected under international law, according to which any mandatory requirement to register websites is not legitimate.

CLD will be releasing a full analysis of the amendments in the coming weeks.

Indonesia’s Law on Public Information Disclosure came into force in 2010, but implementation so far has been uneven. Some public bodies have done an excellent job, while others have largely failed to respond to their openness obligations. In an effort to address this, on 29-30 May the Centre for Law and Democracy (CLD) and the Indonesian Centre for Environmental Law (ICEL) provided training for local public officials from seven provinces and regencies across Indonesia. Response to the training was extremely enthusiastic, with some public bodies covering their own costs to be able to participate.

“Indonesia’s right to information law has the potential to transform relations between citizens and government at the local level,” said Toby Mendel, Executive Director of CLD. “But for this to happen, local government has to meet its obligations under the law.”

Some of the public bodies represented at the training have already appointed dedicated information officers and established openness systems, and are looking to improve their performance. Others are just beginning the process of implementation. Participants engaged in animated dialogue with Indonesian and international experts on the benefits and structures of Indonesia’s right to information law.

“We are happy to have received such positive engagement from the officials who attended,” said Dessy Eko Prayitno of ICEL. “We hope that they will carry the lessons they learned with them back to their workplace, and apply them in their provinces and regencies.”

CLD and ICEL developed a special manual (available in Bahasa here) to carry out the training. This activity is part of a broader programme sponsored by Open Society Foundations aimed at boosting implementation of the right to information in Indonesia. The programme also includes demand-side support, grassroots activities and the production of resource materials.

More information on the work of CLD and its partners in Indonesia is available on our project websites here (in English) and here (in Bahasa).

The second Conference on Media Development in Myanmar, held from 20-21 May 2013 and attracting over 300 participants, noted progress in several areas of media development, including the ongoing preparation of four laws, namely a print law; a printers and publishers law; a broadcasting law; and a public service media law. Participants at the conference also discussed reform of existing laws, and especially the defamation law, and the possibility of preparing a right to information law.

In an immediate follow-up to the conference, Centre for Law and Democracy (CLD) and International Media Support (IMS), in partnership with Mizzima Media, hosted two workshops to discuss these issues: one for members of the national and regional parliaments, focusing on media regulation; and one for lawyers, focusing on international standards and defamation.

“These workshops were part of our ongoing programme of support to the media law reform process in Myanmar,” said Toby Mendel, Executive Director of CLD. “It is essential that different stakeholders understand key international standards regarding media regulation, and also other freedom of expression standards, especially as the reform process deepens.”

CLD and IMS have been working together to support the development of democratic media legislation. This has included a number of workshops for different stakeholders, and the provision of technical advice and written submissions on the four laws and related issues, such as the constitutional guarantees for freedom of expression and the draft code of ethics being prepared by the Press Council.

The workshop on defamation was the first time IMS and CLD have held an event focused on that issue. The aim was to provide lawyers with tools they can use to defend journalists and media outlets who face defamation suits. At the end of the workshop, participants agreed to take forward a discussion on ways to work more closely together to continue to build their skills in this area.

“The media development conference held on 20-21 May reaffirmed that journalists in Myanmar are experiencing an unprecedented level of freedom to exercise their rights. As these changes become more rooted, it will be important to ensure that journalists and media outlets have access to good legal advice if they need it,” said Jesper Højberg, Executive Director of International Media Support (IMS).

Today, the 14th 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 San José, Costa Rica. This latest Declaration, prepared with the assistance of the Centre for Law and Democracy and ARTICLE 19, highlights the importance of preserving and expanding diversity in the airwaves through the transition to digital terrestrial broadcasting, as well as concern that in some States, “commercial and political considerations have dominated” the debate.

“The digital terrestrial transition is importantly about efficiency gains in spectrum use,” said Toby Mendel, Executive Director of CLD, who participated in the launch event. “States need to make sure that these gains lead to greater diversity in the media, given the centrality of diversity to the effective realisation of freedom of expression.”

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

The Joint Declaration elaborates in detail the measures States should take to protect and promote freedom of expression during the digital transition. It highlights the need for clear and consultative decision-making processes about this important social development, and for regulatory measures to be implemented only by a body which is protected against both political and commercial interference (i.e. by an independent regulator). It also provides a number of both recognised and more innovative options for States to consider with a view to fostering greater diversity in broadcasting.

Some of the other key points made in the Declaration include the following:
• The transition should not impact negatively on the ability of public service or community broadcasters to operate.
• Care should be taken to ensure that the transition does not lead to greater concentration of media ownership.
• Effective measures should be taken to prevent the transition leading to a digital divide.

The new right to information (RTI) legislation being proposed by the Danish government, the Act on Openness in Administration, signally fails to address the very serious problems in the current regime. Alongside minor improvements in some areas, there is substantial regression in terms of the regime of exceptions. Indeed, the new proposals score just one point out of a possible 30 for exceptions on the RTI Rating, a recognised international methodology for assessing the quality of legal frameworks for RTI, developed by the Centre for Law and Democracy and Access Info Europe (available at: www.RTI-Rating.org). The proposed law scores just 63 points out of a possible 150, which would put Denmark in 78th place globally out of 93 countries with RTI laws, just up from its current dismal ranking of 85th place.

Click here to read the Analysis
Click here for RTI Rating results for Denmark’s draft Act on Openness in Administration
Click here for the RTI Rating results for Denmark’s current law

“Developed democracies are no longer at the forefront on this key democracy issue,” said Toby Mendel, Executive Director of CLD. “The Danish government has simply failed to take advantage of this opportunity to undertake the serious root-and-branch reform which is needed to bring it more into line with international standards on RTI.”

The Danish proposals have come under significant fire for their restrictive treatment of ministerial information. However, an analysis by CLD demonstrates that this problem is just the tip of the iceberg. In addition to several new exceptions, the major problems with the current system – including its limited scope, flexible time limits for responding to requests, the absence of a public interest override for exceptions and the lack of a dedicated administrative appeals body – have not been addressed.

The Centre for Law and Democracy has prepared a set of Comments on the draft Access to Information Law published by the Afghan government. There have been discussions in Afghanistan about a right to information law for some time. It is a positive step that the government has published official draft legislation with a view to obtaining public comments on it.

“The draft provides a good basis for discussion about this key issue,” said Toby Mendel, Executive Director of CLD. “But it could still be improved in important ways to give fuller effect to the right to information.”

Click here for the Comments
Click here for the draft Law

CLD’s Comments make a number of recommendations to improve the draft law, including the following:
• The law should apply to all information held by public authorities, not just information which is needed to protect a right or improve a public service.
• The scope of information subject to proactive disclosure should be expanded to cover more information about finances and implementation of the law.
• The procedural rules should be substantially revised to make it easier to make requests and to streamline processing of those requests.
• The access to information law should prevail in case of conflict with secrecy laws, and the regime of exceptions should be narrowed by subjecting all exceptions to a requirement of harm and by adding a public interest override.
• The independence of the oversight commission should be strengthened and its powers enhanced.
• Sanctions for the wrongful disclosure of information should be replaced by protection for those who disclose information in good faith.

The Centre for Law and Democracy welcomes efforts to adopt a right to information law in Afghanistan, and urges the government to bring the draft law more fully into line with international standards before it is adopted.

Given the steady stream of corruption and mismanagement allegations that have emanated from the province in recent months, it is hardly revelatory to suggest that Quebec has a problem with transparency. A Submission released today by Centre for Law and Democracy (CLD) spells out in the detail the nature of these problems, and how Quebec’s legal framework for access to information needs to be changed to bring it into line with international standards in this area.

Click here to read the Submission

The Submission identifies a litany of deficiencies, including overly broad exceptions, the limited scope of the law, routine breaches of timelines and overcharging of requesters. It also notes that several public authorities, including ministers’ offices, municipalities and members of the National Assembly, are under no firm obligation to disclose any information, instead having the discretion to release information only when they feel this would be expedient.

“Previous studies carried out by CLD have found significant problems in every jurisdiction in Canada,” said Toby Mendel, Executive Director of CLD. “But even in this weak peer group Quebec is noticeably deficient. We urge the Government of Quebec to seize this opportunity to take action to put a stop to the culture of secrecy and the harm it engenders.”

The Submission was prepared for a general consultation and public hearing being held by the Province of Quebec’s Committee on Institutions that is meant to address, among other issues, the implementation of Quebec’s Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information.

The Centre for Law and Democracy (CLD) and International Media Support (IMS) today released Comments on the draft Printing and Publishing Enterprises Law (draft Law) released by the Ministry of Information of Myanmar in early March 2013. In August 2012, the Ministry tasked the Interim Press Council with preparing a draft Press Law, and the release of the draft Law by the Ministry came as a surprise to many observers. As the Comments make clear, the draft Law fails in important ways to conform to international standards regarding media freedom.

Click here to read the Analysis

“The important steps Myanmar has taken over the last year and a half to bolster respect for freedom of expression in practice now need to be anchored in a democratic legal framework,” said Toby Mendel, Executive Director of the Centre for Law and Democracy. “The draft Printing and Publishing Enterprises Law, the first draft media law to be formally published by the government, fails to do this.”

The CLD/IMS Comments make a number of recommendations, including the following:
➢ Consideration should be given to doing away entirely with the system of registration for publishers, printers, news agencies and imported publications.
➢ If registration is retained, it should be limited in scope, not involve onerous procedures and be overseen by an independent body.
➢ Any restrictions on the content of what may be published in the media should be in line with international standards and the Ministry of Information should play no role in applying these rules.

We urge the Myanmar authorities to allow the Interim Press Council to complete its work of preparing a draft press law, and then to hold discussions on legal regulation of the print media based on that draft.

The International Monetary Fund (IMF) has launched a review its Transparency Policy, last revised in 2009. As part of the Review, the Centre for Law and Democracy (CLD) has produced a Submission assessing the current policy against the standards developed by the Global Transparency Initiative (GTI) (www.ifitransparency.org). Some international financial institutions (IFIs) – including the Asian Development Bank, the World Bank and the Inter-American Development Bank – have made significant progress on transparency in the recent years; the IMF Policy, in contrast, remains limited to a proactive disclosure list approach.

Click here to read the Submission

“The IMF recognises the importance of transparency in its documents,” said Toby Mendel, Executive Director of CLD. “But it fails to give proper effect to this in its policy; the new policy needs to establish a proper presumption of disclosure with a full regime for making requests for information.”

The current IMF Transparency Policy is essentially a list of the documents that the IMF is committed to releasing proactively. Even for this list, the Policy grants extensive veto powers to States regarding information which relates to them. The Policy does not provide for any system for making requests for the vast majority of the information it holds. It also lacks other key elements of a proper presumption of disclosure system, such as a limited, harm-based system of exceptions and a right of appeal to an independent oversight body.