Centre for Law and Democracy

6 August 2021. The Centre for Law and Democracy (CLD) is today releasing open letters sent last week to the leaders of the three main Nova Scotian political parties, the Liberal Party, Progressive Conservative Association and New Democratic Party, along with the responses of each party (Liberal/PC/NDP). Sent in the middle of an election campaign, the open letters request party leaders to make election promises to conduct a comprehensive review of the local right to information (RTI) act, the Freedom of Information and Protection of Privacy Act (FOIPOP) and to make three more specific commitments. All three parties responded in a timely manner to our letters, but all failed to make the promises we asked for, instead repeating vague promises to improve the act that have proven ineffective in the past.

“It is regrettable that while all of the party leaders have made statements about the importance of transparency and accountability, none are prepared to make strong and specific commitments to reform the woefully out-of-date Nova Scotian RTI law,” said Toby Mendel, CLD’s Executive Director. “We got the same general commitments two elections ago, when we conducted a similar exercise, and have yet to see any concrete reform of the act; Nova Scotians deserve more.”

Although Nova Scotia was the first jurisdiction in Canada to adopt an RTI law, in 1977, the act has not been significantly reformed since then. According to the RTI Rating, CLD’s internationally recognised methodology for assessing the strength of RTI Laws, the Nova Scotian law scores 85 out of 150 possible points, placing it in 65^th place out of the 129 countries currently on the RTI Rating, far behind leaders such as Mexico, Sri Lanka and Slovenia. In 2013, CLD published an Analysis of the FOIPOP Act that includes a comprehensive list of 18 recommendations for reform. Of those 18 recommendations, the open letter calls on leaders to make specific commitments to three, chosen by CLD for their overriding importance to transparency and accountability, as follows:

• • Grant the Information and Privacy Commissioner of Nova Scotia binding order-making power.
  • Ensure that all exceptions are subject to a robust and comprehensive public interest override which requires public bodies to release information whenever the overall public interest is served by this, notwithstanding the exceptions.
  • Ensure that exceptions which protect public interests are subject to a sunset clause of 20 years or less, after which they no longer apply.

CLD is disappointed by the weak responses from party leaders and calls on them now to make more specific and genuine commitments to reform the legislation so as to prove that their statements in favour of accountability are genuine.

For further information, please contact:

J.Y. Hoh
Legal Officer
Centre for Law and Democracy
Email: jyhoh@law-democracy.org
+1 416 833 2918
www.law-democracy.org
twitter: @law_democracy

30 July 2021.

The Centre for Law and Democracy (CLD), with the support of the Global Media Defence Fund run by UNESCO, is running a project designed to support the formation and development of national networks of lawyers dedicated to media defence work and promoting freedom of expression.

“Media lawyers’ networks can be crucial forums for building media law as a specialisation, bolstering legal protection for media freedom, exchanging knowledge and supporting strategic litigation,” said Toby Mendel, Executive Director, CLD. “Despite the obvious advantages, such networks exist in relatively few countries. This project aims to change that by raising awareness about their benefits and how to go about creating one.”

CLD will host an open webinar outlining the benefits and activities of media lawyers’ networks, sharing some key resources we have developed to support this work and discussing the steps which need to be taken to establish such a network.  The webinar will be held at:

• • Name: Introduction to Creating a Media Lawyers’ Network: Open Webinar
  • Date: 10 August 2021
  • Time: 13:00 UTC
  • RSVP: Email laura@law-democracy.org to obtain the link for the webinar

A link to the agenda for the workshop is available here.

CLD has developed a number of resources to assist lawyers who are interested in forming a Network. These include a brochure explaining the project, a Background Note on Media Lawyers’ Networks and a Model Constitution to serve as a guiding template for those interested in drafting a constitution for a new network. These resources are available in different languages at: https://www.law-democracy.org/live/projects/media-lawyers-networks/.

If you are unable to join the webinar but are interested in this idea, please contact us by email and we will be in touch about possible follow-up opportunities.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

15 June 2021. Today, Toby Mendel, Executive Director of the Centre for Law and Democracy (CLD), is appearing as an expert witness and presenting a written Statement before the Inter-American Court of Human Rights in the case of Palacio Urrutia and Others v. Ecuador. The case challenges the conviction of journalist Urrutia and fellow defendants for defamation for a newspaper article in 2011 about then-Ecuadorian President Rafael Correa. The conviction resulted in sentences of three years’ imprisonment and a civil damages award of USD 30,000,000, as well as an additional damages award of USD 10,000,000 against the defendant newspaper, El Universo.

“It is an honour for me to have been asked by the Inter-American Commission on Human Rights to be its expert on freedom of expression in this case,” said Toby Mendel. “This case gives the Inter-American Court of Human Rights a chance to further its jurisprudence in a number of important freedom of expression issues regarding both civil and criminal defamation law.”

Some of the key points Mendel made in his written Statement and will stress orally before the Court today are:

• • The key statements in the article were opinions on matters of public interest which are protected speech and should not attract any sanction in defamation law.
  • Criminal defamation is, per se, a breach of the right to freedom of expression; reputations should be protected through the civil law.
  • As an alternative to the above, imprisonment is never appropriate as a sanction for defamation.
  • The civil damages award in this case was wildly excessive; non-material damages for protection of reputation, as such, should be modest and punitive damages should be applied only in highly exceptional circumstances and, in any case, not extend to the level of damages in this case.

Mendel’s Statement is available in English original and Spanish translation. The session is available on the Inter-American Court of Human Rights’ Facebook page here and its YouTube channel here.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

“the Inter-American Court of Human Rights — in Session” by enaduris is licensed under CC BY-NC-SA 2.0

12 May 2021. The Centre for Law and Democracy (CLD) is releasing two documents analysing, respectively, Mauritius’ Information and Communication Technologies Act 2001 (ICT Act) and recently proposed amendments to that Act. The first is a Note highlighting current human rights problems with the ICT Act, including the lack of independence of media regulators and overbroad content restrictions. The second was submitted in response to the Consultation Paper on Proposed Amendments to the ICT Act for Regulating the Use and Addressing the Abuse and Misuse of Social Media in Mauritius (Consultation Paper), issued by the Mauritian Information and Communication Technologies Authority (ICTA) on 14 April 2021.

“The ICT Act already imposes undue restrictions on the rights to freedom of expression and privacy but the new proposals, if implemented, would represent a flagrant violation of these rights for every Mauritian who uses social media,” said Toby Mendel, CLD’s Executive Director. “Mauritian authorities should abandon these drastic proposals and instead address the underlying human rights problems with the ICT Act.”

The 14 April 2021 proposals would require all social media traffic to and from Mauritius to be routed through a proxy server run by the ICTA, and establish systems to break any encryption provided by social media platforms and conduct official surveillance of all of this traffic. The goal is to enforce existing (very problematical) content restrictions in the ICT Act and to add new responsive measures, including widespread powers to block offending social media pages and content. Implementation would be done by a technical enforcement agency operating under the ICTA, which is not independent of government, and a new content-adjudication agency, which is also unlikely to be independent.

CLD’s submission debunks the misleading justifications provided by the ICTA for these drastic proposals and makes several key recommendations, including to:

• • Abandon these extreme proposals and, instead, focus on working more closely with social media platforms, and building the capacity of the people and institutions of Mauritius to address problems flowing from social media.
  • Ensure that any regulatory bodies which have the power to regulate freedom of expression, whether new or existing, benefit from both formal and structural protections against political and commercial interference.

CLD’s key recommendations for improving the current ICT Act include:

• • Enhance the independence and diversity of the four regulatory and advisory bodies it creates.
  • Amend the licensing scheme which regulates too many services, has vague criteria for the issuance and removal of licences, and authorises intrusive search powers.
  • Remove or substantially amend the numerous vague and overbroad content and other offences which criminalise everyday speech and behaviour, and can result in fines of up to USD25,000 and ten years’ imprisonment.

The submission on the 14 April 2021 Consultation Paper is available here.

The Note that assesses the existing ICT Act can be found here.

For further information, please contact:

J.Y. Hoh
Legal Officer
Centre for Law and Democracy
Email: jyhoh@law-democracy.org
+1 416 833 2918
www.law-democracy.org
twitter: @law_democracy

10 May 2021.

Myanmar’s military took control of the country in a coup on 1 February 2021. Just two weeks later, on 14 February, they introduced important changes to the Penal Code and the Criminal Procedure Code which have become the primary legal provisions being used to charge journalists, student leaders, civil servants and others who are opposing the military regime. Today, the Centre for Law and Democracy (CLD) is releasing Analysis: Amendments to the Penal Code by the State Administration Council, which provides a comprehensive assessment of the amendments as against international human rights standards. It is accompanied by a shorter document which is designed to provide a quick overview of the scope and impact of the amendments.

“Detention, criminal charges, harassment and violence against peaceful protesters, journalists and activists has become the new normal in Myanmar,” said Toby Mendel, Executive Director, CLD. “The changes to the Penal Code are an attempt to give legal cover to these actions, but they do not even begin to pass the test of legitimacy from an international human rights standpoint.”

New section 505A prohibits causing fear, spreading false news and agitating crimes against a government employee, all punishable by up to three years’ imprisonment. The military is now using section 505A essentially as its default for bringing criminal charges against a wide range of persons deemed to pose a challenge to their authority. Other problematical amendments include:

• • Expansions of the scope of high treason and sedition, which make it easier to convict individuals simply for criticising the military (sections 121 and 124A).
  • New sections 124C and 124D which make it a crime to hindering the work of the military or government employees.
  • A new section 505(a), not to be confused with 505A, which makes it a crime to make a statement undermining the morale of military or government employees.
  • Martial law, imposed in some locations since March, allows cases involving these offences to be heard by military tribunals and increases the maximum sentence to death or life imprisonment with hard labour.

The full Analysis is available in English and Burmese.
The summary document is also available in English and Burmese.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

7 May 2021. The Centre for Law and Democracy (CLD) is pleased to join more than 100 other organisations and individuals in endorsing a letter in solidarity with Ivan Pavlov, a Russian human rights activist and lawyer who has been criminally charged with disclosing data of a preliminary investigation which has been declared secret. The likely reason for these charges is Pavlov’s role, along with other members of Team 29, which he heads, in defending opposition leader Alexey Navalny’s Anti-Corruption Foundation (FBK) and campaign offices against criminal accusations of advocating extremism.

“These charges against Ivan, who is a lion of the human rights and right to information struggle in Russia, are clearly politically motivated,” said Toby Mendel, CLD’s Executive Director. “They also represent a new development in Russia where, until now, lawyers have largely been able to defend their clients despite crackdowns on the opposition.”

Pavlov was detained on Friday, 30 April, and, although he was later ordered to be released by a judge, this was on condition that he not use a telephone or the Internet. Pavlov has been a tireless campaigner against government secrecy and in support of human rights. Just the day before he was charged with making information public, he had accused Russian authorities of abusing secrecy rules in the Navalny case and lodged another legal case to have those materials declared open to the public.

The various measures against Pavlov, including the charges and communications ban, are a manifest breach of his rights to freedom of expression and criminal due process. They represent a broader attack on the rule of law, including respect for the independence of lawyers. CLD calls on democratic States and intergovernmental human rights bodies to take action to defend the rights of Pavlov and all Russians.

The letter with the full list of signatories is available in English original, as well as in Arabic, French, Russian and Spanish translation. 

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

(Image credit: TaisiaSuvorova, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons)

30 April 2021.

Today, as Namibia hosts the World Press Freedom Day Global Conference 2021, the Centre for Law and Democracy (CLD) released an Analysis of Namibia’s Access to Information Bill. This Bill, which was tabled in parliament in 2021, would give individuals a right to access information held by government. Overall, the Analysis shows that the Bill is largely in line with international standards but could still be further improved. A quick assessment of the Bill based on CLD’s RTI Rating (www.RTI-Rating.org), which is a methodology for assessing the strength of legal frameworks for the right to information globally, shows that it earns a score of 114 out of a total 150 points. This would place it in 20^th position from among the 128 laws currently assessed on the Rating. A few tweaks to the Bill could increase Namibia’s score, placing it among the top ten countries globally, alongside Liberia, the only African country currently in that group.

“Adopting a right to information law has been a matter of debate for a long time in Namibia, so adopting one is long overdue,” said Toby Mendel, Executive Director, CLD. “While the Bill is a good start, parliament should introduce a few improvements so that the final law offers rigorous protection for the right to information.”

The Bill has a number of strengths, such as an independent Information Commissioner with extensive powers, broad scope of coverage and a good set of promotional measures to support effective implementation. The Analysis offers comprehensive recommendations on areas for improvement, but some highlights include:

• • No reasons should be required to be provided when making a request for information and more detailed procedures for making requests should be added.
  • The ATI law should trump secrecy provisions in other laws in case of conflict.
  • The current exclusions of key information related to the cabinet and judiciary should be removed.
  • The public interest override should be amended so that it applies whenever the public interest in accessing information is greater than the harm disclosing it would cause.
  • The criminal sanctions for accessing exempt information should either be removed entirely or be limited in scope to officials.

CLD’s Analysis is available at: Analysis of Namibia’s Access to Information Bill

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

25 April 2021.

The Centre for Law and Democracy (CLD) is today releasing an Analysis of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (referred to informally as the national security law for Hong Kong). The law has become notorious for its broad restrictions on commonplace expressive activity and the extensive control it gives mainland China over criminal prosecutions in Hong Kong, as well as its frequent use, including against leading media and pro-democracy personalities, such as Jimmy Lai. The CLD Analysis, which was produced with support from the International Federation of Journalists (IFJ), outlines the precise legal means used in the law to achieve those repressive aims.

“It is a supreme irony that this law, which was introduced in response to the protests in Hong Kong against threats to introduce legislation to allow criminal suspects to be extradited from Hong Kong to China, not only allows such extraditions but goes so much further,” said Toby Mendel, Executive Director, CLD. “With this legislation China has affirmed, comprehensively, its legal and practical control over freedom of expression in Hong Kong.”

The law creates four new broadly worded offences, namely secession, subversion, terrorist activities and collusion with a foreign country. All four offences are problematical. For example the offence of terrorist activities criminalises the vague notion of “advocating for” terrorism. But collusion with a foreign country is the most flexible, covering broad notions which have no place in the criminal law, such as disrupting the formulation of laws, engaging in hostile activities against Hong Kong or China and provoking hatred against government.

Some of the key other problematical measures in the law include the following:

• • It reverses the normal presumption in favour of bail, which will be granted only if judges have sufficient evidence that the accused will not endanger national security.
  • It provides for cases about national security to be tried by judges who are hand picked on one-year terms by the Chief Executive.
  • It creates a high-level oversight Committee which is “under the supervision of and accountable to the Central People’s Government”.
  • It also creates a Hong Kong office of China’s security services, essentially a Hong Kong outpost for their operations, and grants it extensive powers.
  • It allows for cases to be transferred to mainland China’s justice system, including at the discretion of the office mentioned in the previous point.
  • It grants the police broad powers to order the takedown of content, as well as to intercept and conduct surveillance of communications without the need to obtain any judicial authorisation.

The Analysis is available here.

For further information, please contact:

J.Y. Hoh
Legal Officer
Centre for Law and Democracy
Email: jyhoh@law-democracy.org
+1 416 833-2918
www.law-democracy.org
twitter: @law_democracy

14 April 2021.

The Centre for Law and Democracy has released a summary, in English and Burmese, on the rights of protesters in Myanmar and of the media workers who cover protests. Widespread protests have broken out across Myanmar in response to the 1 February 2021 military coup d’etat, and the military has responded with arrests, detentions, and violence, sometimes lethal. The summary covers the international human rights standards applicable to protests and provides tips for protesters and journalists on the ground.

The summary is available here in English and Burmese.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

12 April 2021. 

The Centre for Law and Democracy has published a Note that explains the recent legal troubles faced by Hong Kong publisher and democracy activist Jimmy Lai. Lai is facing reprisals from authorities in Hong Kong and mainland China due to the outspoken newspaper he founded, Apple Daily, and his other activities as a leader in Hong Kong’s pro-democracy movement. Several of these charges are under Hong Kong’s colonial-era Public Order Ordinance and the recent mainland China national security law for Hong Kong, both of which have serious failings from an international human rights perspective. 

“CLD is deeply concerned that the Public Order Ordinance and national security law for Hong Kong are being used to target activists such as Jimmy Lai for legitimate expressive activity,” said Toby Mendel, Executive Director at CLD. “Laws should never allow for the criminalisation of peaceful protests and publishing legitimate political speech, especially where, as is the case here, they provide for lengthy jail terms.” 

CLD’s Note on Lai is available at: Note on Jimmy Lai.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

10 March 2021.

The Centre for Law and Democracy (CLD) has provided a Submission on disinformation to the UN Special Rapporteur on Freedom of Expression. The Submission is in response to a call by the Special Rapporteur for inputs into her June 2021 report to the Human Rights Council, which will focus on disinformation and freedom of expression. CLD’s Submission reviews the main responses by both States and intermediaries to disinformation, analyses them from the perspective of freedom of expression and makes recommendations for future action.

“Disinformation is a growing problem around the world which, even as it represents an exercise of the right to freedom of expression, also seriously undermines that right,” said Toby Mendel, CLD’s Executive Director. “However, all too often responses to disinformation from both governments and intermediaries are broad-brush measures which fail to strike a careful balance between addressing the problem and minimising harm to human rights.”

Government responses to disinformation may consist of adopting broadly worded criminal prohibitions which lack appropriate intent requirements, allocating powers to regulate speech to political (as opposed to independent) actors and placing legal obligations or pressure on intermediaries to restrict content. Governments should focus far more on building trust by taking measures to prevent disinformation by officials, to enhance the flow of reliable information from official sources, to support a diverse, independent media sector and to put in place strong regimes for ensuring that citizens can access official information.

Intermediaries also need to respond in a far more transparent and nuanced way to disinformation. Their definitions of what speech breaches their policies need to be far more precise and be guided by human rights standards. Far greater transparency is needed regarding those definitions, how policies are applied and enforced, and how their automated systems prioritise and feature certain content. Where the approach taken by those automated systems tends to promote disinformation, directly or indirectly, intermediaries need to acknowledge this and address this issue directly, even if it may affect their business interests. Intermediaries also need to engage far more with users in the Global South to ensure that their policies take local conditions appropriately into account.

CLD’s Submission is available  UN Special Rapporteur for Freedom of Expression: Submission on an Annual Thematic Report on Disinformation.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

1 March 2021.

The Centre for Law and Democracy (CLD) has submitted an amicus curiae (friend of the court) brief to the Constitutional Court of Colombia, setting out international standards to support the claim that a civil defamation provision from a 1944 law is unconstitutional.

The provision, Article 55 of Law 29 of 1944, provides for broad civil indemnification for anyone who has been harmed by content distributed by the media unless the responsible media outlet proves that it acted without “culpability”. The CLD brief argues that this fails to respect international guarantees of freedom of expression, which require sufficient defences to be available for a claim of defamation.

“We welcome the opportunity to support this important challenge to the civil defamation law rules in Colombia,” said Toby Mendel, CLD’s Executive Director. “It is great to see the focus of defamation challenges in Latin America moving on from the earlier focus on criminal defamation to civil defamation, suggesting that cases may also be moving in that direction.”

The latter draws some support from a 9 February annual report by the local press freedom organisation FLIP (Fundación para la Libertad de Prensa or Foundation for Press Freedom). Titled Páginas para la libertad de expresión (Pages for Freedom of Expression), the report notes that there has been an increase in legal cases against the media, with officials preferring this to responding to the substance of media investigations.

CLD’s brief highlights three defences which should be available for any allegation of defamation, namely proof of truth, wide protection for opinions and the defence of reasonable publication, which is made out whenever the person who is responsible for a statement took reasonable care to ensure that it was accurate, even if in fact it contained errors. The brief also argues that third party intermediaries should not normally be responsible for content unless they have been ordered by an independent oversight body, such as a court, to take it down.

CLD’s amicus curiae brief is available here.

El informe de amicus curiae está disponible en español aquí.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

23 February 2021.

CLD joins with Malaysian and international media organisations and freedom of expression groups to voice concern over the conviction of Malaysian news outlet Malaysiakini on contempt of court charges. This conviction could have serious impacts on the exercise of freedom of expression throughout the country.

The conviction is based on five comments left by third parties in the comments section of a news article on the decision to re-open Malaysia’s courts. It reflects a reliance on an archaic “scandalising the court” approach to contempt of court which does not adequately protect public criticism of the judiciary, as well as an inappropriate imposition of penalties on an intermediary for comments left by Internet users.

As expressed in the Joint Statement: “We call on the Malaysian government to end and refrain from the continued use of intimidating measures to threaten and punish the media and silence opinions.”

CLD joins ARTICLE 19, the Centre for Independent Journalism, Gerakan Media Merdeka, the International Federation of Journalists, the National Union of Journalists Peninsula Malaysia and Reporters without Borders in the statement, which is available in full here.

18 February 2021.

CLD is one of 45 organisations jointly calling on Cambodia to reconsider the Sub-Decree on the Establishment of the National Internet Gateway. We are concerned about the harmful impact of this Sub-Decree on the exercise of human rights in Cambodia, especially the rights to freedom of expression, access to information and privacy.

The full Joint Statement is available at: Joint Statement: Discard the Sub-Decree on the Establishment of the National Internet Gateway, set to detrimentally impact human rights online in Cambodia. 

1 February 2021.

The Centre for Law and Democracy (CLD) has provided a written Submission on Normative Frameworks for the Right to Information to the UN Office of the High Commissioner for Human Rights (OHCHR). The OHCHR is preparing a report on this issue to be presented to the UN Human Rights Council at its forty-seventh session in June 2021. The Council asked the OHCHR to prepare the report in its July 2020 resolution on freedom of expression, the first such resolution it has adopted in more than a decade.

“We very much welcome both the interest of the Council in this issue and the opportunity to contribute to the OHCHR’s report,” said Toby Mendel, CLD’s Executive Director. “We also hope that the Council will follow this up by taking concrete action to encourage States to improve national legal frameworks for this right and to push inter-governmental organisations to put in place strong policy guarantees for it, something they have so far mostly been reluctant to do.”

The CLD Submission relies heavily on the RTI Rating, which provides a good roadmap for a strong normative framework for the right to information, at least insofar as that framework should be reflected in law. The Submission goes further than the RTI Rating in some areas, such as the institutional framework for and a number of policy measures which can strengthen this right.

The Submission starts out by describing the RTI Rating, the standards it promotes and how it can be used to research country legal provisions on different issues. It then goes on to describe better practice normative frameworks in nine areas, namely guarantees for the right, institutional frameworks, proactive disclosure, scope of application of the right, requesting procedures, the regime of exceptions, appeals, sanctions and protections and promotional measures.

CLD’s Submission is available at OHCHR Submission on Normative Frameworks for the Right to Information.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

15 January 2021.

The Centre for Law and Democracy (CLD), an international human rights organisation based in Halifax, Nova Scotia, will host up to four interns for the summer of 2021. The position will involve a range of substantive legal work in areas such as freedom of expression, media law, digital rights and access to information.

CLD provides expert legal services on foundational rights for democracy for the support and promotion of these rights around the world. Select recent projects include:

• • Supporting Myanmar’s democratic transition, including by fostering the development of a robust and independent media sector and the drafting of new laws governing broadcasting, digital speech and access to information.
  • Supporting strategic litigation in various countries to establish stronger standards of respect for freedom of expression.
  • Developing innovative new tools to assess implementation of access to information laws as part of the Sustainable Development Goals.
  • Providing expert input into law reform processes in a range of countries, such as Jordan, Samoa, Vietnam and Nepal.
  • Campaigning against global threats to digital rights, such as mass surveillance, content restrictions, Internet shutdowns and efforts to undermine encryption and digital security.
  • Providing training and support to journalists, lawyers, judges and activists in countries around the world on media law and human rights issues.
  • Maintaining a comprehensive rating of the strength of access to information laws globally (www.rti-rating.org).

We ask interns to commit to at least three months full-time work during the months of May to August. We normally ask interns to be based in our office in Halifax, since we believe being with us in-person provides a richer all-round experience for interns. However, given the ongoing pandemic, we will select interns on a competitive basis and, where necessitated by travel restrictions or other pandemic-related restrictions, accommodate remote internships. These positions are unpaid and we encourage prospective interns to seek funding from their law schools or other sources.

CLD is known for providing its interns with a rich and varied substantive legal experience. As such, interns will have the opportunity to be directly involved in advancing the cause of human rights, normally in a range of countries, over the summer. For more information on CLD’s work, visit our website at www.law-democracy.org.

Those interested in applying should send a copy of their resume, cover letter and unofficial law school transcripts to laura@law-democracy.org by 8 February 2021. Final candidates may be asked to provide a writing sample.

Successful candidates will have a strong academic record, excellent research skills, the ability to multi-task, and a demonstrated commitment to international law and human rights. Languages and international experience are assets. Applicants should be current law students or recent graduates; on an exceptional basis we will consider candidates without a law background.

CLD is an equal opportunity employer and will not discriminate against any applicant on the basis of characteristics such as age, disability, gender, national origin, race, religion or sexual orientation.

11 December 2020.

The Centre for Law and Democracy (CLD) is today releasing a Human Rights Analysis of Biometric Digital ID Systems providing insight into the issue of developing a human rights compliant biometric digital ID system. A system of this sort is currently being considered in Myanmar. The Analysis reviews the human rights that may be negatively impacted by a biometric digital ID system and describes how to avoid such harms. It also reviews digital ID developments in Myanmar, as well as in a selection of countries where courts have limited implemented or planned biometric digital ID systems. 

“Biometric digital ID systems can have important advantages for both citizens and public authorities, but they also often negatively impact human rights, in particular privacy,” said Toby Mendel, Executive Director, CLD. “At the moment, Myanmar lacks key elements of a protective legal framework which should be in place before adopting such an ID system.”

In each of the three countries reviewed in this Analysis, India, Jamaica and Kenya, senior courts have either limited or halted entirely biometric digital ID systems, primarily on the basis of privacy but also other rights, such as social and economic rights which can be impacted through denial of access to services provided by both public and private actors.

Key recommendations in the Analysis include:

• • Any biometric digital ID system should be set out clearly in law; otherwise, it will breach the international law requirement that limits on privacy be done only by law.
  • A strong personal data protection regime should be put in place before adopting any biometric digital ID system.
  • Registration in a biometric digital ID system should be voluntary and should not be a prerequisite for receiving social services or benefits.
  • Any biometric digital ID system should be overseen by an independent body.
  • Any biometric digital ID system should not be linked to sensitive personal data such as citizenship, race, ethnicity or religion.

The Analysis is available here in English and Burmese.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

10 December 2020.

For United Nations Human Rights Day 2020, CLD’s Toby Mendel shared a blog post about media freedom in Myanmar at the website of partner International Media Support. The blog is available here and reproduced below.

Standing up for journalists’ rights – a status from Myanmar

Blog by: Toby Mendel

This blog is being published on 10 December 2020, United Nations Human Rights Day. The theme for this year is Recover Better – Stand Up for Human Rights. This is very relevant in Myanmar for a number of reasons. All countries can do a lot to improve on their human rights performance. But Myanmar, which emerged from a long period of one-party and military rule only recently, has a lot to do to ensure strong respect for human rights. Closely related to that, the country held its first recent democratic elections in 2015 followed by another election on 8 November 2020. That election returned Aung San Suu Kyi’s party, the National League for Democracy, to government with an even stronger win than in 2015. Human Rights Day can provide an opportunity for the government to reflect on how it will use its large majority to push forward with human rights reforms.

Since 2012, Myanmar has gone from having a very controlled media environment to one which is much freer. At the beginning of 2012, for example, non-government daily newspapers were banned and private newspapers had to submit their copy to the censor before they could publish it, a true prior censorship regime. There were also essentially only two broadcasters, both closely linked to the government. This has changed and a fairly vibrant and competitive print media environment operates alongside a broadcast sector which is slowly expanding, although it remains remarkably limited compared to other countries in terms of both the number of licensed broadcasters, both radio and television, and the vast dominance of the two crony broadcasters.

What Myanmar has achieved since media reforms started around 2012

In 2012, the main media-specific legislation in Myanmar was the 1962 Printers and Publishers Registration Law. This operated alongside laws of general application – like the Penal Code and the 1923 Official Secrets Act – other sector laws – like the Telecommunications Law 2003 – and a number of official policies and rules to create a highly repressive environment for the media. Content was regulated both criminally via a number of laws and through the system of prior censorship, in addition to through relationships such as the joint venture arrangements between the government broadcaster, Myanmar Radio and Television (MRTV), itself firmly under government control, and the two main private broadcasters.

Three new media laws have been adopted since 2012. The 2014 News Media Law creates an independent oversight body – the Myanmar Press Council – to regulate the news media and generally lightens the degree of control over the media, while still failing in important respects to come up to international standards. The Printing and Publishing Enterprises Law, adopted the same day, establishes a registration regime for the print media and repeals the 1962 law. Like the News Media Law, it is an important improvement over the previous regime while also not coming up to international standards. Finally, the 2015 Broadcasting Law is the most democratic of the three, establishing an independent Broadcast Council to regulate broadcasters and setting largely progressive standards for the sector. Unfortunately, the implementing regulations which are needed to put this law into practice were only adopted in October 2020, after a delay of more than five years, so no new broadcasters have actually been licensed yet under it. On the other hand, a Public Service Media Law, tabled before parliament in 2014, which would have transformed the government-controlled State media into more independent public service media, was withdrawn in 2015 and has never been reintroduced.

A number of policy measures have also been adopted. The prior censorship regime was abolished in August 2012, providing important breathing room for newspapers, while dailies were allowed in early 2013.

The theme at this year’s Human Rights Day is “Recover Better – Stand Up for Human Rights”: How can the media sector in Myanmar contribute to this?

In Myanmar, as in other countries, the media can and to some extent does play a number of important roles. First and foremost among these is informing the public about what is going on in the country and also regionally and internationally. Armed with this information, the public can engage in public decision-making and influence the direction of the recovery. By the same token, the public can participate in any recovery schemes, ensure they are following public health and other advice and take advantage of any rights or benefits to which they are entitled. The media can also, through reporting, expose corruption and wrongdoing, thereby hopefully curbing it. Finally, the media play an important accountability role, making sure that government lives up to its promises and implements programmes and policies in accordance with their proper design.

What obstacles do you see that the media working under to contribute to this recovery?

The media in Myanmar face a number of challenges, again often similar to those faced by media in other countries. The new dailies and the small number of new broadcasters that have been licensed all face major economic sustainability challenges. These have been seriously exacerbated by the COVID-19 pandemic as advertising has declined as other businesses have both been negatively impacted and moved their advertising even more decisively online, in line with the overall social migration to online.

Government secrecy is another challenge. The Official Secrets Act is massively overbroad in terms of secrecy, while a new National Records and Archives Law, adopted in December 2019, exacerbates problems of secrecy. At the same time, despite having released a draft Right to Information Law, giving individuals the right to access information held by government, in February 2016, the government has not moved forward concretely to adopt this law. The government also tends to favour the still significantly government-controlled State media in terms of the provision of information. These media have also been privileged during the pandemic shutdowns, since their journalists were the only ones deemed to be essential workers and allowed to move about to collect news.

Finally, a wide array of mostly criminal prohibitions on what may be disseminated through the media – found in a number of laws, including the Penal Code – place major constraints on media freedom. These include criminal defamation rules as well as a large number of prohibitions on the digital dissemination of information. The problem of these provisions is far from theoretical, with criminal cases against journalists under them being filed regularly.

Mis- and disinformation and hate speech continues to be widespread and serious issues in Myanmar, including by enabling human right violations: Does the legal framework need to be amended to address this and, if so, how?

Mis- and disinformation is a very serious problem in Myanmar and it has even been promoted in some cases by official actors to achieve political ends. As a first measure in this area, participation by official actors in spreading disinformation must stop. In addition, Myanmar has a number of vague legal prohibitions on spreading “false” information, such as section 68 of the Telecommunications Law which prohibits the dissemination of “inaccurate information”, which have been abused to silence critical journalists and social media users. These should be replaced by narrowly tailored provisions on spreading false information with specific intent, such as fraud, undermining elections or preventing people from obtaining heath care services.

The new government will be installed in April 2020: What are your hopes for action by the government in the areas of media freedom and freedom of expression?

As this blog makes clear, the new government has a lot to do. Some of the key priorities should be:

1. Adopting and implementing a strong right to information law. This should be accompanied by a thorough revision of the Official Secrets Act so as to bring it into line with international standards in this area.
2. Appointing an independent Broadcast Council and allocating it with sufficient resources to get on with its work of licensing and regulating broadcasters.
3. Reviewing and revising the numerous content restrictions in various pieces of Myanmar legislation. In the meantime, refraining from bringing cases against journalists under these rules.
4. Adopting legislation transforming the government media into independent public service media.

Biography: Toby Mendel is a leading global expert on media and freedom of expression law who has worked on these issues for some 25 years. He is currently the Executive Director of the Centre for Law and Democracy (CLD), an international human rights NGO based in Canada which focuses on foundational rights for democracy. He has worked on media freedom issues in Myanmar since CLD was founded in 2010 and has worked intensively in the country on media law reform since this started to be considered seriously in 2012. CLD is a long-time partner to IMS.

“IMS-Fojo in Myanmar is working on the country programme “Paving the way for public interest journalism in Myanmar” 2020-2022”.

27 November 2020.

Today, the Centre for Law and Democracy (CLD) provided a written Submission to the five-year review of the Canadian province of Newfoundland and Labrador’s Access to Information and Protection of Privacy Act, 2015. This is the first review since the law was substantially overhauled in 2015, after which it earned 111 out of a possible 150 on the Right to Information Rating (www.rti-rating.org) and became by far the strongest right to information law in Canada. Despite these strengths, CLD has identified a number of areas where improvements are needed to bring the law into line with global best practice.

“This review is an opportunity for Newfoundland and Labrador to make its good access to information law even better,” said Toby Mendel, CLD’s Executive Director. “Having already provided leadership within Canada on this important issue, we urge those responsible, starting with the Statutory Review Committee, which will recommend changes, to take the bold steps needed to prove that Canada can position itself among the best in the world on this key democratic and human rights issue.”

Some of the key recommendations in the CLD Submission were as follows:

• • The positive aspects of the law, namely the robust Information Commissioner and strong procedural rules, should be maintained and even further improved upon.
  • The weakest area of the law, the regime of exceptions, should be carefully reviewed and revised so that exceptions are narrowly defined to serve a legitimate interest, are subject to harm tests, a public interest override and sunset clauses, and prevail over any conflicting provisions in other laws.
  • The scope of public bodies covered by the law should be expanded to cover the judicial branch and any private body which undertakes a public function or operates with significant public funding.

CLD’s Submission is available here.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy