Proportionality as the Key to Weighing Freedom of Expression in Times of Conflict
In times of crisis, concerns over war propaganda and the spread of disinformation rub against the need to protect our fundamental rights, including the right to freedom of expression and the right to privacy. The war in Ukraine, and the ensuing geopolitical crisis that is emerging in the wake of this conflict, calls upon the international scholarly community but also on human rights activists and legislators to reconsider the relationship between freedom of expression, the right to privacy and the need for public safety and the protection of national security. When re-conceptualizing the relationship between fundamental rights and security, we are mindful that neither freedom of expression nor the right to privacy are absolute rights. The relative weight of these conflicting rights and interests may need further differentiation. Concerns over incitement to hatred and the justification of war crimes require adequate responses from states, media organisations, and social media platforms. This new and important study documents and analyses the responses of states, media organisations and social media platforms to the war in Ukraine. Governing Information Flows during War: A Comparative Study of Content Governance and Media Policy Responses after Russia's Attack on Ukraine makes a key contribution to this pressing debate on disinformation and war propaganda, and to the role of fundamental human rights in the digital age. I would like to recognise all country rapporteurs who have contributed to the quick compilation of data and expression of views on these significant matters.
Professor of Human Rights Law (Tallinn University), Chair of the Global Digital Human Rights Network
What Policy-Makers and Platforms should Do when Conflicts haven an Informational Dimension
- Although the bans against Russian state-sponsored media have received wide support, they should not serve as a proxy for future bans against media outlets. Exceptional situations make for bad law.
- Legitimate concerns over disinformation and war propaganda must be balanced against the imperative to protect fundamental rights, especially the right to freedom of expression. Interferences with fundamental rights must be lawful, necessary, proportionate and time-limited.
- The actions of media organisations, including social media platforms, must be human rights-compliant. They fall under both hard and soft rule of law. Media organisations should not become the de facto final arbiters of fundamental rights, and the war in Ukraine must not become a catalyst to enhance the regulatory power of social media platforms.
- Disinformation practices, and associated regulatory challenges, require urgent and ongoing scholarly attention, and national and international multi-stakeholder engagement involving academics, legislators, human rights NGOs and media organisations.
- In regard to the collection of data on armed conflicts, private actors can also play an important role. Social media platforms have a legitimate interest to delete war-related information that displays, inter alia, illegitimate content such as hostilities, violence and wounded persons, but also disinformation. However, providers should also be aware that they sometimes provide the only easily accessible possibility for those affected by armed conflict to store proof of possible human rights violations, war crimes and crimes against humanity. Platforms should hence provide special procedures to restore such deleted data, and/or collaborate directly with prosecutors of international and national investigators and courts.
Private legacy and social media companies in many countries have blocked access to Russian and Belarussian media companies and portals after the Russian invasion. Did private companies in your country act first on their own initiative or was it a consequence of state instructions?
Out of the 27 EU member countries, we obtained information from 18 – Austria, Belgium, Croatia, Cyprus, Estonia, Finland, France, Germany, Ireland, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Slovakia, Slovenia, Sweden – and it appears that large private media outlets acted quickly on their own initiative and suspended the distribution of Russian news channels in only one country – Finland. There are examples that some companies in Austria and Latvia took similar action, but the scale was smaller. In five countries – Belgium, Estonia, Latvia, Lithuania, and Poland – the national authorities issued instructions to suspend Russian media outlets shortly after the invasion, hence prior to the Council Regulation and even before the President of the European Commission announced the intention to implement this measure across the EU. Given the shortness of the “time window” in Europe, it would be overly formal to give too much significance to the question “Who acted first?” – private media companies or national governments. What matters is that access to certain Russian and Belarussian media outlets was suspended within a very short period as a result of coordinated activity between the national authorities and private actors. There are no reports of non-compliance with the respective state instructions. All other EU countries surveyed took action only after the Council Regulation by implementing its provisions. We can add the United Kingdom to this list, although no longer a member of the EU, as it exhibited a similar pattern. It would be speculative to contemplate if, when and how governments of EU Member States would have acted, had there been no immediate response from the EU Commission. We surveyed 11 non-EU countries: Albania, Argentina, Bosnia and Herzegovina, Iceland, Israel, Moldova, Norway, Serbia, South Africa, Turkey. None of these countries report state intervention into access to Russian and Belarussian media outlets, nor any restrictive measures introduced by social media companies on their own initiative.
The “time window” in Europe was relatively short for private media companies to take action upon their own initiative to restrict or block access to Russian and Belarussian media outlets, and for the national authorities in the EU countries to issue such instructions. The timeframe is from early morning on 24 February 2022 – when Russia invaded Ukraine – until 1 March 2022, when the Council of Europe adopted Regulation (EU) 2022/350, which is directly applicable in its entirety and suspended broadcasts from and access to certain Russian media outlets. In reference to this timeframe of only five days we have studied whether there was any action taken before the Regulation by private media companies and/or national governments on their own initiative to reach the same effect.
Private media outlets that acted before national government instructions and the Council Regulation
There is only one EU member country among the countries surveyed where private entities acted on their own initiative before the national government instructions and the Council Regulation. This country is Finland. Action was taken by the big network companies themselves very quickly. This includes two main corporations that distribute Russian news channels. Elisa corporation announced on Friday 25 February on its Twitter account (@ElisaOyj) that they support Ukraine and are suspending the broadcasting of the Channel Russia Today. The same happened with Telia Finland, which announced on 25 February on their twitter account (@teliafinland) that they would stop freely transmitting Russian news channels Russia Today and RU-TV because of the war in Ukraine. With some reservations Austria and Latvia can be added to this list. Magenta Austria, owned by Deutsche Telekom, preempted the EU legislation and blocked RT on 27 February 2022. In Latvia, several operators had already stopped the distribution of some Russian channels on 1 February 2022 before the beginning of the war. The intention of these actions is unknown, presumably it was due to a lack of consumer interest. The chairman of the National Electronic Mass Media Council (NEPLP) noted that this decision would reduce the amount of propaganda.
In Slovakia, a number of private actors stopped the distribution of Russian media, such as TV channels, from 26 February.
The European Union countries where national authorities acted before the Council Regulation
According to our survey, there are five such countries: Belgium, Estonia, Latvia, Lithuania, and Poland.
In Estonia at 6.44am on the morning of 25 February 2022, that is one day after the Russian invasion of Ukraine, the Estonian Consumer Protection and Technical Regulatory Agency (CPTRA), published a statement that it has issued a directive to Estonian communication enterprises to stop access to five Russian TV stations and one Belorussian TV station in Estonian territory (RTR Planeta, NTV Mir – also NTV Mir Baltic, Belarus 24, Rossija 24, TV Centre International).
On 9 March 2022, the CPTRA issued another instruction stopping access to the Russian TV program RBK (also known as RBC TV). The text of this instruction is published in writing on 11 pages and signed by the lawyer of the information society office. The instruction provides detailed excerpts from the program on 3 March – for example Ukrainian soldiers are named as murderers, it is argued that Ukraine was not supposed to have weapons threatening Russia, and it is suggested that the decision to invade had been justified, even obligatory. The instruction refers to the Estonian media services act as its legal basis, which prohibits the transmission of programs inciting violence and hatred, when this causes damage to someone’s life, health or property. The instruction says that by labelling the Ukrainian population as fascist and murderous, it is indirectly inciting violence against the Ukrainian state and people. The instruction provides a remedy to bring a claim in front of the CPTRA or Tallinn Administrative Court. It is stated that the claim does not suspend the applicability of the instruction.
In Latvia, on 24 February 2022, the NEPLP suspended the retransmission of several Russian channels, but on 25 February 2022, one of the leading television providers – tet – decided to stop the retransmission of television channels on all of the company's television platforms, the owners or officials of which are affiliated with the Government of the Russian Federation, subject to international sanctions or whose status is currently not fully obtainable. The decision came into force immediately, and on the night of Saturday, 26 February 2022, the retransmission was suspended for the following channels: PBK Estonia, MirTV, THT, Пятница International, THT4 International, CTC Baltics, RTVi, THT Music, КХЛ, Авто Плюс, Наука, Перец !, РБК, 1 + 2, Моя Планета, and Домашний. A similar decision was taken by television platform “Go3", satellite television “Home3” and the telecommunications company SIA “Baltcom”. It must be noted that at the time of the decision, both "TV3 Group" and "Baltcom" decided to suspend not only channels whose retransmission licences were revoked by the NEPLP, namely, PBK Lietuva and PBK, but also all other channels produced in Russia. Therefore, the NEPLP and private companies worked side by side – NEPLP revoking the retransmission licences on the basis of a proven discrepancy with the law, but the private actors taking more cautious steps, meaning even more comprehensive bans.
Telenet, one of the biggest media services distributors and the only one offering Russia Today in Belgium, stopped the distribution of Russia Today around 28 February. This decision was not taken on its own initiative, it was asked to do so by the Conference of Telecommunications and Media Regulators (CRC). The CRC consists of the Flemish Media Regulator VRM, the Media Regulator of the French-speaking Community CSA, the Media Regulator of the German-speaking Community Medienrat and the federal telecommunications regulator BIPT. In the Flemish press it was reported that in the run-up to this decision the Flemish Minister of Media sent a letter to the Flemish Media Regulator requesting them to decide to stop the broadcasting of Russia Today. However, Flemish press reported that Russia Today could still be accessed (in Flanders) after the distribution by Telenet was suspended, for instance through Rumble. In that same newspaper article it is reported that the Belgian internet providers Proximus, Telenet and Voo were blocking a number of websites on which RT was available. In a statement issued by the CSA on 2 March, a reference had been made to the fact that they were looking into whether domains offering Russia Today and Sputnik could be suspended.
In Poland, on 24 February 2022, the National Broadcasting Council adopted a resolution to remove the following Russian programs from the register of television programs distributed in the ICT system and from the register of programs redistributed on satellite and internet platforms: RT , RT Documentary, RTR Planeta, Soyuz TV and Rossija 24. Consequently, the programs cannot be distributed over cable networks, satellite platforms and internet platforms. In Lithuania, YouTube removed the accounts of Russian language TV channels whose reception was suspended in Lithuania following the requests filed by the Lithuanian Radio and Television Commission on 26 and 28 of February.
Taking action after the Council Regulation
The governments of Austria, Croatia, Cyprus, France, Germany, Ireland, Italy, Malta, Portugal, Slovenia, Sweden took action after the Council Regulation. The actions of private companies and the government of the United Kingdom appear to be mutually reinforcing. Further, the UK follows, and is impacted by, the actions of media platforms in the European Union (EU), and by the EU’s decision-making.
Neither public authorities nor private companies have taken any action to block or restrict access
All the non-EU countries surveyed in different continents belong to this category, these are: Albania, Argentina, Bosnia and Herzegovina, Iceland, Israel, Moldova, Norway, Serbia, South Africa and Turkey.
To illustrate the situation, the following examples are listed in alphabetical order.
Albania appears to cooperate with international partners, yet no specific instructions for blocking or suspension have been issued on the state level.
In Argentina, no state instructions have been submitted in order to block access to Russian and Belarussian companies and portals. No restrictive measures have been adopted until the submission of this report by mid-March 2022 by local social media companies.
Bosnia and Herzegovina is experiencing political disagreement about the nature of the conflict in Ukraine. Despite this, Telemach, one of the leading cable operators, internet and alternative landline providers in the country decided to block the signal of Russia Today, after a number of requests from media associations and individual outlets/portals.
Iceland and Israel report no private or public measures.
For Moldova it should be noted that several influential legacy media outlets, who in the past retransmitted Russian state media, have ceased to do so since the beginning of the Russian invasion of Ukraine, anticipating a ban from the national regulator. The cessation to rebroadcast was accompanied by an increase of locally created content that could not be banned by national regulator, in the framework of a national ban that would mimic the one imposed at the EU level. This tactic has enabled these legacy media outlets to circumvent a ban on activity and continue to spread disinformation. There was no noteworthy access blocking on social media.
In Norway, social media do not seem to have blocked the Russian media content in Norway as per March 11^th^, 2022. RT is available on Facebook and streaming live on Youtube. Facebook adds a label marking RT as a Russian state-controlled media. There have been no instructions from the state yet to block the access to the Russian and Belarussian media, and social media might be waiting for state decisions before taking concrete actions in Norway.
In Serbia, the Ministry of Culture and Information, which is in charge of the media, has not declared its official stance regarding the European sanctions against Russia Today and Sputnik and how they will affect Serbia. The media house “Sputnik Srbija” has its correspondent office in Belgrade and news in the Serbian language, with constantly updated information about the situation in Ukraine. Cable operators in Serbia broadcast the Russia Today channel in English until the broadcast of Russia Today and Sputnik on the Eutelsat 16A satellite was stopped on March 2, 2022, due to the decision of the Council of the European Union when the signal from the satellite was turned off. After that, on March 5, the state operator Telekom Srbija (MTS, Supernova) re-established the broadcasting of the content of the Russia Today channel, and Orion Telekom did the same a day later on its IPTV and OTT platform. The state operator Telekom Srbija broadcasts the Russia Today channel on the IPTV platform as well as on the Supernova cable network, while the channel is still not available on the OTT (Iris TV Go, Supernova TV) and satellite platform (m: SAT TV). These operators did not comment on the rebroadcasting of the channels, as well as their disappearance. Non-state-owned operators such as SBB have not yet re-established the channel.
The South African position has gone against the grain of most countries in the world. The only case of access being blocked is that RT has been taken off the DSTV menu. The DSTV has stated that they have not blocked access to RT themselves, but rather it is their global service provider that has blocked RT. It reads “Feed Stopped Abruptly by Supplier” with an explainer, “The feed for this channel is not available from the international supplier. We apologise that the broadcast feed was abruptly stopped”. Journalist’s responses to the banning of RT have typically been negative, and along the lines of the ban being “a dangerous moment for journalism”. It’s important to point out that while RT has been blocked on DSTV, it is still available on YouTube to the South African public.
In Turkey, neither public broadcasting nor private broadcasting organizations prevented the content produced in Russia.
Has your (media) regulatory agency that is responsible for licensing specific kinds of media (like TV channels and radio stations) become active in the case of disinformation on the Russian attack on Ukraine? If yes, please provide brief details.
As described above, the states covered in this report can be categorized most expediently in two groups: European Union member states (EU MS) and others.
Most EU MS’s responses (see e.g., submissions from Austria, Croatia, France, Germany, Ireland, Italy, Malta, Portugal, Slovenia, Sweden) were confined to the transposition of the sanctions imposed against Russia at the supranational level. Hence, the respective regulatory agencies of EU MS had to inform media companies and Internet providers about their new duties emanating from the sanctions.
Authorities in Belgium, Estonia, Latvia and Lithuania as well as Poland acted quickly and on their own account, banning a number of Russian (and Belarussian) broadcasting services since the beginning of the invasion – hence before the EU sanctions were enacted. In the case of Latvia, restrictions were imposed even earlier: 60 programs – half of which were Russian – were banned from broadcasting in the past three years. In these states, regulatory agencies have taken an especially active role - bans, based on the applicable provisions of national law, came directly from them (see Estonia, Lithuania). The quality of legal arguments therein varies. The majority of non-EU states have not imposed any sanctions at all. The United Kingdom stands out: The media regulator Ofcom opened 27 investigations into RT, and the UK’s public service broadcaster, the British Broadcasting Corporation (BBC), has halted all content licensing with its Russian customers.
Aside from the rather mundane finding that EU MS abided by the sanctions introduced by the Union, one can identify a correlation between actions taken by countries and their geographical, cultural, and linguistic proximity to Russia. The higher this proximity to the Russian Federation, the more expedient and far-reaching are responses from regulatory agencies. This is especially displayed by Estonia, Latvia, Lithuania, and Poland, whose authorities banned a wide span of Russian broadcasting services and websites. These restrictions were all argued very similarly in the interest of national security.
Another deduction can be made concerning the relative inaction of some states in the Balkans which seem to display conflicting interests and allegiances. For example, Serbia is hopeful of becoming an EU MS on the one hand, but on the other hand there are historical ties to the Russian Federation. By not imposing any sanctions, Serbia neither conforms to the EU sanctions regime, nor explicitly expresses its loyalty to Russia. The situation of Albania and Bosnia and Herzegovina is similar. In Moldova, among other states, while there are regulations in place banning programs that originate in states that have not ratified the European Convention on Transboundary Television, including the Russian Federation, it is still possible to watch Russian TV channels via satellite or online.
Have the governments proposed/taken (additional) measures to regulate social media accounts/channels/pages in response to the armed conflict in Ukraine, e.g., a ban on media channels or requests to block access to certain pages? If so, please add a short description and the underlying legal argumentation.
Responses to this question can be grouped into three categories:
- Most governments did not propose or introduce domestic legislation aimed at regulating platforms, social media accounts or TV channels in response to the war in Ukraine.
- A significant number of states included under (i) are European Union (EU) member states who have adopted the EU’s sanctions on Kremlin-backed outlets Russia Today and Sputnik. At the time of country submission, these sanctions have not yet been fully implemented in all EU member states, e.g., Portugal.
- A small number of states, located within geographical proximity to Russia or Belarus, introduced legislative changes, e.g., via amendments to existing laws, such as Estonia and Latvia; by introducing a state of emergency that extends to the control of broadcasting and social media, such as Lithuania; or by conferring additional powers on security agencies to monitor the media coverage of the war, such as Moldova.
Additionally, several governments asked their respective national regulators to ban or block access to Russian TV stations. For example, in Belgium, the Flemish (regional) parliament asked the government to take all possible measures against Russian disinformation, and to advocate for a stronger EU-wide framework against disinformation.
References to the legal argumentation that underpin a social media ban or the blocking of TV stations were limited, reflecting the dearth of legal argumentation provided by states, and the relatively low number of legislative initiatives at domestic level. Political justifications, pitched at a wider public, appear to be more common. These, as in the case of France or the UK, tend to centre on concerns over Russian disinformation and propaganda.
Where governments introduced or amended legislation, they justified such changes with reference to ‘securing morality and lawfulness in the provision of media services’ (Estonia), threats to national security and public safety (Latvia), or concerns over incitement to hatred (e.g., Moldova).
What is your government’s position on an EU-wide ban on Russian/associated media corporations? Should such a ban include banning their social media accounts/channels/pages? Has this ban been underpinned by legal argumentation? If yes, what legal arguments have been presented by your national government? Has there been any public debate about appropriate legal argumentation?
The participants in the study were asked about the position of their national governments on the EU-wide ban on Russia and the Russian-associated media.
Basically, two major currents can be identified: the supporters of the ban and the neutral countries/abstainers. However, the EU-wide ban is widely accepted and there are only a few governments debating this. Public debates are restrained.
If there is criticism, it is that it is more abstract and focused on the importance of free media and information rights.
Advocacy of the ban
The majority of respondents could affirm the support of the respective government. These include Austria, Italy, Malta, France, Iceland and Ireland. Within the individual approving nations, however, there were some critical voices that noted possible violations of national constitutional rights. Right-wing freedom and anti-vaccination parties (e.g. MFG party) in Austria also voiced criticism in the debate.
On 10 March, the Lithuanian government imposed a state of emergency through a resolution that also included provisions for dealing with Russian media and agreed to ban Russian media with some exceptions. However, there was no consensus in parliament on what specific rights would be restricted as a result. Only opposition parties stressed that the planned new restrictions went too far and that Lithuanian law offered sufficient possibilities for limiting Russian state media. The Lithuanian Prime Minister complied and declared that the final text of the ruling would comply with the opposition's wishes by making some changes.
In Slovakia, it was decided to ban the dissemination of pro-Kremlin coverage until the Russian aggression against Ukraine ends and the Russian Federation and its affiliated media stop their propaganda against the Union and its member states.
Banning measures have already been implemented in Belgium. Private legacy and social media companies have blocked access to Russian and Belarusian media companies and portals in many countries. At the request of the Conference of Telecommunications and Media Regulators (CRC), Telenet, one of the largest distributors of media services and the sole provider of Russia Today in Belgium, stopped broadcasting Russia Today on 28 February 2022.
In principle, the government of the United Kingdom also expresses itself in line with the European bans. Although the UK is not a member of the EU, the EU’s ban on Russian media extends to the UK.
Neutral and abstaining votes
Many European countries seem to be neutral to the ban on Russian state media, or at least publicly neutral. It seems that some governments are very cautious.
The German government has not taken a public position on the Russian media ban so far. The country's difficulty lies in the implementation of the planned measures. The regulation of media is a matter for the federal states. According to the Media Authority Berlin-Brandenburg (MABB), the concrete competence would just be determined between the federal government and the states.
In Finland, Sweden, Argentina and Estonia, there were also no further debates apart from the European decisions.
Latvia's position is particularly noteworthy. The National Council for Electronic Mass Media (NEPLP) called on authorities of other states to use data on the infringements of several television programmes to restrict the retransmission of these programmes. It is worth noting, however, that as early as 2020, the head of the NEPLP called for political action at the EU level to combat disinformation from Russia.
Despite all this, the Latvian government did not actively comment on the ban.
This once again reinforces the observation that many states are reacting rather cautiously and reservedly to the crisis and corresponding European measures.
Despite the lack of an official position on banning Russian state media, Argentina seems to have an overall pro-Russian stance. During the Argentine president's visit to the Kremlin in February 2022, he encouraged Vladimir Putin to use Argentina as the main gateway to Latin America's society and markets. However, despite its principled stance towards Russia, the Argentine government opposed the use of force in Ukraine.
South Africa is also neutral and to some extent sympathetic to the Russian invasion of Ukraine. It is very likely that they would disapprove of the EU-wide ban, as they believe it goes against the South African constitution in terms of media freedom and freedom of expression. The Freedom of Expression Institute and SANEF have spoken out against the suspension of the Russian TV news channel.
Critics of the EU ban repeatedly emphasise the seemingly violated freedoms of media, information and opinion. Partly out of caution, governments also seem not to become part of the anti-Russian measures. Serbia, for example, is not joining the sanctions in order to preserve the protection of its vital economic and political interests. Norway had long delayed a decision regarding the ban on Russia Today or Sputnik. When it came, the Government decided to follow the EU sanctions except on the banning. Norway thus did not ban the two Russian media outlets.
About the public discourse
It is conspicuous that public debate has failed to materialise in many cases. Only a few (often anti-government) seem to discuss the measures. There is high overlap between those political actors that use populist discourse strategies, argue against Corona measure, and defend Russian state media.
In many cases, however, criticism is expressed not in general terms about the planned measure, but about its consequences for existing constitutional rights.
The Lithuanian government, which was generally in favour of the ban on Russian media, also experienced some criticism from the population on the EU-wide ban. This included a Lithuanian professor of political science who stressed that a democratic state should not restrict human rights as undemocratic states do. He explained that as long as Lithuania is not at war, rights should be respected. This includes freedom of information and freedom of the media. However, there was no concrete discussion about the challenges of war affecting social media in Lithuania either.
In the context of the public debate on the EU ban, the Flemish Journalists' Association issued a statement on its website supporting the European Federation of Journalists, which does not support the ban. The ban and its legality were also discussed in the Flemish press. The latter consequently speaks out against the government's actions in the country.
In the majority of the European population, however, such as in Portugal and Bosnia and Herzegovina, among others, there were no debates at all or only small, isolated ones.
From Croatia, for example, it is reported that the public hardly discussed the EU ban and only isolated interviews were conducted with people who expressed "understanding" for Russia. Journalists voiced criticism and tried to invoke freedom of information.
In France, too, there was no significant public debate about the planned measures. However, the main journalists' union in the French state also voiced criticism, warning of possible risks to democracy and the extension of the ban to other media. They also warned of possible retaliatory measures, which were in fact taken by Russia with its new information law.
There has been a lack of public discourse, particularly in Israel, which is part of Israel's response strategy. The country has a generally favourable attitude towards the banning measures, but does not want to get too involved in the Russian conflict.
The situation in Cyprus is completely contrary. There, a fierce public debate about the regulations governing freedom of expression, especially the ban on social media accounts/channels/pages erupted. Non-governmental organisations and independent human rights organisations expressed their concern about the said policy and strongly called for the protection of freedom of expression.
Does your country have special procedures in place for coordination with or regulation of social media corporations during times of crisis?
None of the surveyed states have specific procedures in place regarding the regulation of social media corporations during times of crisis. There are, however, legal possibilities to regulate the media in general in the interest of national security. These procedures mainly apply to specific content and/or situations, as in Albania, Croatia, Finland, France, Italy, Latvia, Norway, Turkey, and the UK, such as hate speech, data protection (Albania) or disinformation during elections (France) rather than times of crisis (such as the present armed conflict) as such.
Latvia, while not having any specific procedures for times of crisis in place, managed to enter into an ad hoc agreement with YouTube to block forbidden channels and prohibit TV broadcasts (RT) via its national regulatory agency (NEPLP).
While there are no social-media-specific coordination procedures or regulations in our sample countries, there are more general emergency powers of government that relate to the media in times of crisis. These possibilities for restrictions generally cover public interests, such as national security. None of these laws, however, has been used to (attempt to) regulate social media platforms during the present armed conflict. Where there has been government coordination with platforms, as in Latvia, it occurred via ad hoc agreements. One more social-media-specific law that is relevant in the present crisis, the French law against the manipulation of information, is in fact not applied, but overridden by EU legislation, which, in turn, is currently being challenged at the European Court of Justice by RT France. Legislative procedures underway, such as the UK’s Online Safety Bill or a similar law in Israel, could profit from taking into account these aforementioned legal proceedings in France. Most importantly, lawmakers should specifically bear in mind the dual publication channels used by classical media (own platform/social media accounts) and include the social media pages of these media as well as a coordination mechanism with social media platforms for governments. The submission from Cyprus specifically mentions an urgent need for regulation in this regard.
Besides the legislative capabilities needed to create functioning laws, administrative capabilities are – obviously – necessary to implement these regulations, as is also the willingness of platforms to coordinate them. Another reason for a lack of coordination, as indicated by Moldova, is the small size of some national social media markets. In some states, including South Africa, the demands of a state of crisis cause the competent authorities to become over-stretched.
Do you consider national laws to ban (the activities of) media corporations for fake news/dis-information sufficient or appropriate in the light of the current crisis?
The answers regarding question six varied greatly. Some of the answers gave us a good inside understanding of the situation in that country, others focused on more general and theoretical points.
It was really impressive to see that all of the contributions do have something in common, but also can be divided into two large groups.
On one side we have European countries with very similar regulations and problems. And on the other side we have the other countries, with an often different approach and diverse situations. The EU countries do not have national laws on fake news and dis-information. They rely on the EU and their measures. Although some European countries still have slightly different regulations, based on different historical or local necessities. In Austria, “fake news and disinformation are currently only regulated (…) as far as personal rights” are concerned.
Most European countries agree on the fact that they have problems managing fake news and disinformation and that the legal situation at the moment is not adequate. France claims that it is also very important to balance the measures against fake news with the fundamental rights of freedom of expression, freedom of information, privacy and personal data protection.
Researchers in Norway highlighted that the State should not interfere too much because of the freedom of expression and information: “We are convinced that democracy is best served by a population with free access to information, and that it is not for the State to decide what information their inhabitants should have access to.”
What we can find in the reports by many of the surveyed countries is that they think the current regulations are not sufficient and not up to date. The Analysis of Irish discourses on the topic reveals that the law essentially regulates traditional broadcast media only; it has not been updated to address specific information or misinformation on websites and social media. In Argentina, current regulations are described as inaccurate. Albania also has the same problem: “Another worrying problem, which has recently become the focus of debate on the legislation on freedom of expression and information, is also the lack of legal reflection on the technological developments in the field of information. Current media legislation refers only to traditional media (with the exception of information platforms on the Internet mentioned in the Law on Audiovisual Media only in relation to the technical side of their licensing).”
Researchers in South Africa also claim that their national laws were currently insufficient to take action on media corporations for mis-and disinformation. Latvian scholars have claimed that they have noticed substantial Russian disinformation, especially in the Russian speaking minority in their country. “In the last two weeks, both the NEPLP (National Electronic Mass Media Council) and the Parliament as well as private parties have been actively working to limit the possibilities for disinformation and access to propaganda TV channels and webpages spreading disinformation.” The United Kingdom is introducing an Online Safety Bill, which will regulate social media platforms and give enhanced powers to the UK media regulator Ofcom. Serbia has the strictest regulation for fake news and disinformation (“causing panic and disorder by presenting or spreading false news or allegations”) as it is part of the Criminal code of the Republic of Serbia and includes a penalty at the basic level of imprisonment for 3 months to 3 years. The criminal legislation of Serbia is applied equally in regular circumstances, as well as in a state of emergency.
Have elected officials promoted/contradicted bans on Russian/associated media in your country and/or the EU?
There seems to be a wide consensus amongst elected officials that bans on Russian/associated media have been appropriate and necessary. In a small number of countries, representatives of opposition parties have been critical of these bans. Some countries outside of the EU have not introduced bans on Russian/associated media and have based this approach on the argument of neutrality.
It seems that there is a wide consensus that bans on Russian/associated media are necessary. The reasons are based on how closely connected Russian/associated media outlets are to Russian state authorities, and therefore are not considered to disseminate accurate news and information, but instead providing disinformation and propaganda through their broadcasting. Even some elected representatives are saying that these bans strengthen free and independent media.
There are only marginal opposition voices that have been critical of the actions taken. This is mostly based on the idea of neutrality in countries like Austria. In some countries, such as Lithuania, the criticism is more a reflection of the scope of emergency powers used than the media bans in particular.
Outside of the European union, some countries have taken the position of being neutral, and therefore do not consider it necessary to issue bans.
Have civil society organizations/trusted flaggers/social media corporations reported a surge in online hate speech (e.g., against Russians) in your country?
Most submissions did not report a surge in online hate speech, but these responses should be seen in the context of a lack of reliable data; in fact, reference to the absence of data was a common feature of many submissions. Two responses – from Latvia and Poland – drew on research reports that documented online hate speech, primarily directed at Ukrainian refugees, at nationals supporting Ukrainian refugees, and at the Polish and Ukrainian states.
The Austrian-based Antidiscrimination Office Styria (ADS) registered an increase in online hate speech and offline hate crimes reported via an app. The analysis and publication of reported incidents by ADS and other civil society organisations has the potential to provide important data on this issue.
Several answers identified expressions of Russophobia – online and offline – that have been covered in the national media and that, in some of the states (e.g., Lithuania), have been condemned by the elected officials. The Croatian response highlighted online discussions about a so-called ‘cancel culture’ affecting Russian authors and artists, whilst Cyprus flagged wider concerns about the impact of media bans on the right to freedom of expression.
Have social media platforms in your country – as a direct consequence of the war – changed anything in their community standards or rules to distinguish between lawful and unlawful disinformation?
The majority of countries surveyed reported no change in private social media community standards as a direct result of the war.
Only a few countries reported some developments, as follows. Austria reported indications that news providers tend to deactivate the comment functions on their websites preemptively. In Germany, one social network – the German Neighbour platform nebenan.de – has updated their policies. They have posted special guidelines on what content concerning Putin’s war is allowed, and what does not comply with the platform's rules. In Croatia, some portals introduced a segment on fake news on the war in Ukraine and how to identify them.
No change was reported in the following countries: Albania, Argentina, Belgium, Bosnia and Herzegovina, Cyprus, Estonia, Finland, France, Iceland, Ireland, Italy, Latvia Lithuania, Malta, Moldova, Norway, Poland, Portugal, South Africa, Serbia, Slovakia, Slovenia, Sweden, Turkey and the United Kingdom.
What are the longer-term prospects for freedom of expression online because of this war?
The findings about human rights practices are mainly related to the absence of a specific normative framework to implement bans against legacy media and social media advocating war and aggression. The principal matters are related to the concern that restrictions may create a pattern to be used in the future in less compelling circumstances. These concerns remain abstract and without specific evidence, and are countered by the confirmation that long-term threats to freedom of expression are unsubstantiated because of the pattern where most national governments have not abused their ability to impose restrictions upon legacy media and social media.
The responses from 53 scholars and practitioners have revealed issues related to human rights practices and principles.
Starting with practices, it appears that there is more than one Achilles heel, in particular related to:
- Norm and standard building. The respondents have indicated that norms are best made during peaceful times. There may be a need for more specific disinformation regulation and the outcome of the DSA trilogue may shift towards greater restrictions, although governing disinformation remains very hard and often clashes with specific consitutional guarantees for freedom of expression. The war will probably cause more safeguards to be developed to ensure access to the internet (developing infrastructure including the so-called alternative internet). There is an absence or a lack of objective criteria (and clear procedures for implementing them) for such a ban. At times, it may well prove necessary to suppress clear cases of mis/disinformation that cause direct harm to society (e.g., such as during a public health or international security crisis) but this should be carefully considered and a measured approach should be adopted to avoid setting unfortuante precedents. Banning social media, channels and pages interferes with freedom of expression. There is a need to establish transparent and objective criteria which must be fulfilled in order to legitimise such interference with freedom of expression.
- Increased attention towards fake news and fact checking. There is much more awareness regarding disinformation and propaganda and the fact that it remains very difficult to combat this phenomenon, especially on social media platforms. The importance of independent fact-checking is becoming more and more relevant in times of global crisis.
- Issues of trust towards the media. A further consequence of the present global crisis may be an increase in user distrust of professional channels of information and the continuous rise of plot theories. We are also witnessing the increased activity of platforms in the (geo-)political arena.
- Regarding principles, there are concerns that the freedom of expression is under threat due to the restrictions. However, we note that these concerns mentioned below remain abstract and are without concrete supporting evidence.
We provide below some statements from the countries surveyed for this report.
The arguments heard in the discussions on this in the media, as written by the respondent, are that decisions like this may in the future too easily be used to legitimise the censorship of free media. “Blocking, denial and censorship are not part of Norwegian values, and it is hard to see how this path will not have grave future effects on the freedom of the press and freedom of speech in Norwegian society”.
“The suppression of contrarian media voices – whether characterised by mis- or disinformation or not – is generally troubling. The old adage that “the first casualty in war is the truth” emphasises the need for restraint and accommodating the complexity of diverse views on conflict. It is important to know what dissenting voices think and how they view situations that arise that require public debate. In the absence of these voices, the public debate is void of sufficient difference and diversity within it for it to be meaningful and may well lead to deeper polarisation in the public sphere”.
“Access bans are not a way to combat misinformation and propaganda, but harm the basic qualities of democracy and freedom of expression”.
“In Russia, the war is already leading to a further increase of repressions, if not altogether to the ‘legal death of free speech’ from a new regulation introduced to curb criticisms of the war – repercussions that seem likely to stay longer-term”.
Some respondents are worried that the current restrictions are opening a door for future misuse.
There is a concern that bans and the denial of services coming from Western countries that may have legitimate war-related and political aims, will have lasting effects in the years to come. Some respondents are concerned that the restrictions on freedom of speech being enforced online in response to the ongoing Russian aggression will set precedents that are apt to be misused in future conflicts, real or perceived.
One respondent has written: “Experience has shown that all provisions adopted in time of crisis or under any kind of pressing concern, were not only made perennial but also have led to mission creep, by extending their use to other circumstances, less pressing, less serious, and less consensual when not highly debatable. The result has always been restrictions in fundamental rights of freedom of expression, freedom of information, privacy and personal data protection, and a harmful decline in terms of democracy and rule of law”.
Some responses refer to a real risk that current decisions to restrict media access and online communication may lead to censorship and excessive – and potentially unlawful – interference in the freedom of expression online. Further, human rights defenders are called on to be concerned that the current crisis may further enhance the regulatory power of big tech corporations.
One researcher has called for a selective approach by writing: “It seems disproportionate to non-selectively ban the whole content of a specific media provider, including topics and areas that have no connection to the ongoing crisis (e.g. sports or (popular) culture). This may set a worrisome precedent for future limitations on freedom of expression”.
These abstract concerns regarding the capability of governments to abuse their powers to limit freedom of expression in future situations, where the need for such limitations is less obvious, are countered by statements that there will not be far-reaching threats to the freedom of expression simply because the majority of governments have not abused their powers before, although they had the capability of doing so.
The responses also indicated that the freedom once gained will be difficult to lose despite the temporary restrictions. Some respondents have written:
- “Aside from potential – albeit minor – erosion regarding this specific area of foreign, state-funded media, longer-term implications seem unlikely, as neither public nor private actors have shown an increase of restrictions against freedom of expression”.
- “As long as the "double-checking" of the content of webpages has been followed and the limitation of access is approved only in the most critical cases, such restrictions are proportionate, yet they would breach freedom of expression if used excessively or without sufficient justification”.
Have there been specific concerns on acting against incitement towards ethnic minorities that have been taken by authorities?
There has not been any significant increase of incitement to hatred towards ethnic minorities due to the Russian invasion of Ukraine. In some countries politicians have addressed that there should not be attacks against the Russian population and Russian aggression should not be blamed on Russian individuals. Intelligence agencies have warned about Russia using this argumentation as a justification for further aggression, and therefore reminded the public that individual Russians are not to be blamed for the actions taken by the Russian government.
There seems to be no major signs of any systematic incitement of hate towards ethnic minorities due to the war in Ukraine. However, in some countries, key political leaders have addressed this issue and requested that no hatred be expressed towards Russian individuals staying in their country.
There are dangerous signs that Russia uses hatred towards ethnic minorities to build a false narrative in their own state propaganda and as justification for further aggression. Intelligence agencies have warned about this strategy and reminded us that ordinary individuals with a Russian background are not responsible for the invasion. Russian embassies in some countries have used social media (Twitter) to distribute the message that they want to collect information about aggression towards Russian citizens or the Russian-speaking population. This has received strong opposition from the local Russian-speaking population.