Islannissa on tekeillä edistyksellinen medialaki, jonka tavoitteena on tehdä maasta eräänlainen ”suojasatama” tutkiville journalisteille ja julkaisijoille suojaamalla heitä viranomaisten ja yhtiöiden sensuuripyrkimyksiltä. Samalla tarkoituksena on tarjota malli myös muille maille lainsäädännön kehittämiseksi.
Tässä olisi mielestäni potentiaalinen suunta Piraattipuolueen agendan laajentamiselle. Joitakin alla mainittuja asioitahan puolue onkin jo ollut ajamassa, mutta voisi olla hyvä idea niputtaa näitä median vapauteen liittyviä tavoitteita yhdeksi kokonaisuudeksi Islannin malliin. Median vapauden luulisi myös olevan sellainen asia, joka kiinnostaa, no, mediaa… B)
Alla Islannin lakialoitteen pääkohdat copypastena IMMIn sivuilta:
Current protection of a journalist’s sources is defined in the law on the treatment of criminal cases no. 88/2008 and the law on the treatment of private cases no. 91/1991. The current media bill contains articles protecting a journalist’s sources. It however states that journalists have a right to refuse to expose their sources except when a court ruling states otherwise, as per art. 119 of the law on the treatment of criminal cases no. 88/2008. This seems an overly broad exception to such an important principle and it may contradict principle 3 of Council of Europe recommendation R (2000)7, upon which the media bill’s source protection statutes are based. Given the consensus nature of CoE recommendations, we should strengthen source protection to far exceed this recommendation.
Where statistics have been collected, internal whistleblowers account for most revelations of corporate and government corruption. The rights of the people to benefit from these disclosures should not be abridged and just like in many other countries, specific mechanisms to encourage the reporting of unethical practices should be considered. One could envision, for example, an absolute right to communicate information to a member of the Icelandic Parliament.
The USA Federal False Claims Act (31 U.S.C. §§3729-3733) provides model protections and incentives for those who report frauds made against the government. According to the Government Accounting Office (2006), $9.6 billion was recovered for the government under this act, which protects and encourages the reporting of frauds against the government in a number ways. For instance, by providing employment guarantees that preserve seniority status and salary, as well as providing 15 to 30% of the monies recovered as a compensation and reporting incentive.
The proposers suggest that changes be made to laws regarding the rights and duties of official employees (no. 70/1996) such that official employees be allowed to break their duty of silence in the case of extreme circumstances of public interest. Similar changes could be made to municipal governance law (no. 45/1996) regarding employees of municipal governments. Suggestions for such changes have been made in three proposed bills, parliamentary documents 41 from the 130th legislative assembly, 994 from the 132nd legislative assembly and 330 from the 133rd legislative assembly. It may also be appropriate to make changes to article 136 of the general criminal code (no. 19/1940), such that the interest of the public must always be weighed in procedures against public servants who have disclosed classified information.
Belgian law since 2005 was designed to explicitly protect all communication between sources and journalists, with both groups defined broadly. But such protections may have limited effect if protected communication records between journalists and sources are automatically stored by third parties.
Currently Icelandic telecommunications law no. 81/2003 implements EEA mandated data retention. It applies to telecommunication providers and its current implementation mandates the retention of records of all connection data for 6 months. It states that communications companies may only deliver information on telecommunications in criminal cases or on matters of public safety. It also states that such information may not be given to others than police and public prosecution.
The European directive that caused this law to come into effect, 2002/58/EB from 12. july 2002 regarding privacy and electronic communication, is up for review in the autumn of 2010 and the German constitutional court is expected to rule whether or not data retention is at odds with the European Human Rights Treaty. Given these developments and a general trend towards more privacy awareness, the Icelandic data retention laws may need updating to address these concerns.
Another aspect of communications protection comes from chapter V of the currently implemented law 30/2002 on e-commerce and electronic services, which provides indemnity for ”mere conduits”, such as telecommunications networks and Internet hosting providers. There are few and mostly well defined exceptions to this indemnity, but the exception for general court orders without further definition is worrying. This should probably be improved by clarifying which exact circumstances can trigger such exceptions.
Limiting prior restraint
Prior restraint is any legal mechanism that can be used to forcibly prevent publication. Such restaints have a significant negative impact on freedom of expression. Most democracies place strong and in some cases absolute limitations on prior restraint. Methods for guaranteeing that existing laws not be abused in the attempt to limit the freedom of expression should be explored.
Equal access to justice is an important part of democracy. Even in countries with strong constitutional protections for the press, such as the United States, there is weak process protection, and as a result it may be financially infeasible for publications to participate in legal battles. Even in the cases where the publications have the capacity to defend themselves, it may be against their economic interests. An example of this is the case where Time Magazine was litigated in the United States for running a cover story on financial corruption in the Scientology cult. Although Time magazine eventually won the case, it had to spend $7 million in legal fees taking the matter all the way to the Supreme Court–effectively a multi-million dollar ”fine” against Time magazine for engaging in quality, research based journalism. It would have been impossible for a smaller publication to mount such a defence, and it would be impossible for Time Magazine to take on many such battles, creating a ”chilling effect” on quality journalism and interferring with the democratic process.
It should always be cost effective for a small publisher to stand up against a well financed litigant whose goal is to cover up the truth, and, in general, it should be possible for small entities to defend against large entities. One way to accomplish this is through a measure similar to California’s anti-SLAPP (Strategic Litigation against Public Participation) statutes. Under such a system, a defendant may request the presiding judge to view the case as a freedom of speech issue. If the move is granted, a number of protections are activated during the case itself, and should the case be successfully defended, the plaintiff must pay all legal costs associated with it.
On the 9th of March, 2009, the European Court of Human Rights in Strasbourg issued a ruling against the Times of London which has generated great uncertainty for European publishers. The Court confirmed that, for the purposes of the law of libel, an Internet publication should be considered to be ‘published’ afresh every time a reader views it. The ruling also found that libel proceedings brought against a publisher after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom…’. The court left open to member states what, if any, limiting period may be applied to archives.
The view that an electronic archive is ’published’ every time it is viewed has been extensively abused to remove important articles on corruption from online newspaper archives long after they were published. For example, The Guardian, inorder to avoid unending legal costs, removed several such articles in 2008, originally published in 2003, which reported, the conviction for corruption of a billionaire involved in the Elf-Acquitaine scandal.
To protect the historical archive and give certainty to publishers, we propose that, following the model used in France, that lawsuits related to publishing must be filed within two months of publication and that a ceiling for damages be set to 10,000 Euro (France: three months, 15,000).
Libel tourism protection
The abuse of British libel law has been much discussed in recent years and has recently been counteracted in New York with the New York Libel Terrorism Protection Act. A law with the same intent took force in the state of Florida on the first of July 2009 (Act relating to grounds for nonrecognition of foreign defamation judgments). A similar proposal has been made on a federal level, but has not passed into law yet. The method used in the United States is, on the one hand, to refuse to honour any court verdict that contradicts the first amendment of the US constitution, and on the other hand provides a framework for retaliatory cases against such lawsuits.
Chapter XXV of the Icelandic general criminal code, law 19/1940 (”Almenn hegningarlög”) contains the implementation of libel law. Problems have arisen when courts in other countries have claimed jurisdiction over publications or remarks that have been published or made in Iceland. A libel suit against Hannes Hólmsteinn Gissurarson in the United Kingdom received considerable attention, partly because of the jurisdiction claims and the strict libel law in the United Kingdom.
The supporters of this proposal wish to implement a law similar to those in place in New York and Florida. The rules of the Lugano Treaty on jurisdiction and enforcements of judgment must be carefully considered in this relation. They also believe that Icelandic defendents should be enabled to sue the original plaintiff for reparations in cases where the judgment is considered to be in breach of the general rule of law.
Freedom of Information Act
The Icelandic Freedom of Information law (Upplýsingalög, 50/1996) was enacted in 1996 and has since been amended six times to various degrees. It is mostly modeled after the Danish and Norwegian laws from 1970. The current Icelandic FOI law does not conform to CoE convention, and it does not match the standards set in the Aarhus treaty for environmental information. This presents the opportunity to create maximum transparency by means of of a newer, better and more internationally compliant Icelandic FOI law.
Any new framing of Icelandic FOI law should only be done after taking a close look at the 2009 CoE and OAS recommendations as well as particularly good and modern elements in the FOI laws of Estonia, Scotland, the UK and Norway. The standards with regard to speedy response, a limited number of exemption and rapid access to administrative complaint procedures from the environmental Aarhus treaty ought to be the standard for all information.
It may make sense to make sure this law applies to all government bodies and all non government entities operating on behalf of the government, as well as entities that fulfill a public concession/task paid from public funds. The extent to which businesses can prevent the release of documents that concern them should be strictly limited. The current act does not apply to anything covered by the public administration law, international agreements, etc. The limitation regarding public administration law is by far the most far-reaching of the current limitations, and would likely need to be reconsidered.
There currently exists no central registry of documents held by government bodies, and there is no standardized FOI document request form. One feature that may add greater transparency is an actively internet-published central register of all documents held (as opposed to merely produced) by an institution. At the same time document access should be possible by subject, requesters should not need to know of the existence of a document.
Framers of a new Icelandic FOI law should consider making sure the law applies to classic [paper] and modern [digital] documents in the same way. One might also want to consider raising the level of the administrative complaint to the more internationally compliant form of an information commissioner with binding execution and sanction power. Having such a serious complaint procedure will reduce the workload of the court because it is expected that fewer requesters will go to court after the complaint at the information commissioner.
It would be best if limitations on the release of documents were never absolute and the public interest should always be weighed as well. Privacy-related limitations should not be applicable to any work-related information. Exemptions should expire in as brief a time as is reasonable. One could consider a regime under which the fact that any exemptions were used to successfully prevent release of a document would be published on the internet immediately and where all such exempted documents would automatically published after the expiry of the exemption.
As a general rule documents released should be made available online for all citizens to access. This will increase transparency, prevent requests from being filed more than once and will invite government bodies to disclose documents pro-actively. The law should be based on the notion that government documents are in principle public unless an exceptional reason prevents publication.
Sinun täytyy olla kirjautunut vastataksesi tähän aiheeseen.