1. Background
Freedom of expression is both an individual human right and a prerequisite for a functioning democracy.
The previous Freedom of Expression Commission, which published its report, Official Norwegian Report (NOU) 1999:12 «There shall be freedom of expression», in 1999, primarily reviewed the constitutional protection afforded to freedom of expression. A new provision was added to the Constitution in 2004. This meant that the constitutional protection of freedom of expression was more modern, technology-neutral and complete.
2. The need for a new review
There is now a need for a new review of the position of freedom of expression in Norway. Both the individual’s role and opportunities to express his or her views and the public sphere in general have undergone fundamental changes since the previous Freedom of Expression Commission published its report:
- Digitalisation has fundamentally changed the conditions for freedom of expression as regards the production, dissemination and consumption of content and services. The upsurge in electronic platforms and social networks has led to an explosive increase in the information available to people and people’s opportunities to express their views. These developments have enabled all those with access to a computer to express their views to a large public – via their own websites or blogs, in social media or in comments areas linked to editorial media or other online forums. This has considerably strengthened people’s freedom of expression.
- An editor’s traditional functions as a gatekeeper and filter for the negative aspects of freedom of expression – such as hatred, virulent campaigns, bullying and disinformation – have been weakened in the new media landscape. At the same time, large global media platforms for uploading and sharing content have been assigned a new gatekeeper role, and have considerable influence over digital exchanges of views. It can be discussed whether these platforms have in some cases achieved such a dominant position that their terms of use, algorithms and moderating activities function as general frameworks for freedom of expression.
- An open internet is vulnerable to abuse. When anyone can publish content immediately without any editorial control based on ethical norms and guidelines for the industry, this will also affect the quality of that which is published. Hateful, discriminatory and otherwise offensive statements are increasingly a subject of concern. Statements that are protected by freedom of expression but which are nonetheless regarded as a problem for those affected can also lead to many people refraining from stating their views in public.
- On the other hand, a trend towards greater vulnerability may also be seen, and can lead to demands to refuse to allow a place in the public sphere for controversial persons and opinions, for example. It could be alleged that excessive consideration contravenes the key grounds for freedom of expression, and that allowing those who are most easily offended to define the parameters for social debate is a problem for freedom of expression.
- The global information society means that views which are expressed can immediately spread far beyond the cultural context in which they were stated. This makes new demands – and sets new restrictions – on those participating in debates on social affairs. The meaning of words may be changed, and views that are expressed may to a greater extent be viewed in isolation, independent of their background, context and intention. This can make it more difficult to use linguistic tools such as satire, irony, sarcasm, etc. At the same time, there are examples of global platforms universally enforcing their terms of use, without adapting them to local cultural norms. In some cases, this leads to narrower limits for the right to express views than we have traditionally had in Norway.
- Freedom of expression has been put under pressure by violent extremists and terrorists who use violence and threats. Freedom of expression is weakened if a fear of reprisals leads to some topics being avoided, or some ideas, ideologies or authorities being protected from discussion and criticism. At the same time, violent extremism and terrorism mean that the media are faced with a difficult dilemma – because the media’s tasks and functions are used against them. One of the primary goals of terrorists is to attract attention. And it is the media that give terrorists a public. Violent extremism and terrorism also raise other questions relating to freedom of expression, including the use of propaganda for recruitment, where it can be difficult to draw the line between freedom of expression and criminal incitement to use violence.
- Journalists, politicians, academics, the heads of organisations and other participants in debates on social affairs are increasingly being subjected to threats, violence and harassment, especially online. The safety of journalists is a fundamental prerequisite for the media being able to exercise their democratic function. Threats and harassment may lead to journalists consciously or unconsciously censuring what they say, with regard to both what they write about and how they report news. In recent years, various international organisations such as the UN, Council of Europe and OSCE have focused a great deal on what can be done to improve journalists’ digital security. Various surveys have documented that female journalists are particularly subject to gender-related threats and harassment which may potentially cause great harm.
- The growth in cross-border organised crime, together with greater unpredictability and instability, has led to the need for more intelligence information. Technological developments have provided new opportunities for monitoring communication networks and storing data as part of effective crime-prevention measures. However, the fear that communication may be monitored and registered may make people less willing to state their views freely. This can have a negative effect on democratic debate and may especially affect those whose views are on the fringes of society’s general opinion. For the press, this may make confidential communication with secret sources more difficult.
- The structure of the internet has made it easier to spread propaganda and disinformation in order to promote political or commercial interests, and this involves the manipulation of, and leads to less confidence in, the public sector. At the same time, unjustified allegations of «fake news» are used as a tool to weaken confidence in critical media, and in some countries also to give legitimacy to legislation and measures that weaken the freedom of the press.
- Algorithms and artificial intelligence have become an integral part of the information society, and are used among other things to select, prioritise and target content for individual users, and to remove content that contravenes the terms of use. The use of such tools makes great demands on both private players and the authorities, which must ensure that the use does not conflict with freedom of expression and other fundamental rights.
- Art and culture are arenas for discussing and problematising relevant challenges facing society. Artistic freedom of expression is under pressure in many parts of the world and has also been a controversial topic in Norway during the past year.
3. The assignment
Based on article 100 of the Norwegian Constitution, the Commission is to review the social, technological, legal and economic frameworks for freedom of expression in today’s society. In this regard, the Commission should:
1) Map and compare existing knowledge about the position of freedom of expression in Norway, and consider the need for additional investigations or research in this area.
2) Describe and assess the status of freedom of expression, including developments over time, and – to the extent possible – outline probable trends and future developments.
3) Give an account of the situation in other comparable countries. Here, it is particularly pertinent to look at the other Nordic countries.
4) Pave the way for broad public debate on the topic of the review, including by obtaining and including in the review the experiences and views of various groups, such as:
– Both sexes
– Children and young people
– Elderly people
– People with disabilities
– Ethnic groups and national minorities
– Ethnic, religious, linguistic and sexual minorities
5) Based on that stated in items 1-4 of the mandate, consider measures to promote an open, informed public discourse, including:
– Measures to promote wide participation in the public exchange of ideas. In this regard, the Commission should, for instance, problematise the distinction between offensive statements that are not protected by freedom of expression and statements that are protected but which may nonetheless be perceived as challenging because they lessen vulnerable groups’ real opportunities to express views freely and participation in democratic processes.
– Measures to ensure well-functioning channels for disseminating information and debating social affairs. Here, the Commission should discuss the role of editorially controlled journalistic media, including how distribution in digital channels in competition with other types of content affects the framework conditions for quality journalism. The Commission should also discuss new players with gatekeeper functions and how the authorities can contribute to these functions being practised in accordance with the principles of freedom of expression, integrity and independence.
– Measures to prevent the manipulation of, and weakening of confidence in, the public sphere through disinformation, influencing campaigns, etc. In this regard, the Commission should for example discuss measures to improve the public’s resilience and critical understanding of the media.
– Measures to prevent the spread of illegal and harmful contents on electronic platforms and in social networks, including the need to clarify the platforms’ role and legal liability. In this regard, the Commission should also assess the need for international collaboration and possibly regulation.
– Measures to guarantee citizens secure frameworks and infrastructure for expressing their views freely as a prerequisite for the free, informed formation of opinions and for important information becoming known to the public. Here, the Commission should, for instance, discuss questions relating to anonymity, the protection of sources, encryption, cyber-security, the protection of whistleblowers, etc.
– Measures to ensure the safety of journalists as a prerequisite for the press’s role in society and watchdog function. In this regard, the Commission should assess whether and to what extent threats and virulent campaigns against journalists may lead to self-censure. The assessment should make relevant gender differences visible.
– Measures to safeguard and promote artistic freedom of expression. The discussion should be based on the idea that the democratic significance of art and culture particularly lies in them being channels and arenas for the openness and criticism on which democratic societies depend.
4. Legal frameworks
The Commission shall base its work on freedom of expression as this is protected by article 100 of the Constitution of the Kingdom of Norway, article 10 of the European Convention on Human Rights and article 19 of the UN International Covenant on Civil and Political Rights (ICCPR), see section 2 of the Norwegian Human Rights Act. In addition, article 13 of the UN Convention on the Rights of the Child safeguards children’s freedom of expression, including the freedom to «seek, receive and impart information and ideas of all kinds».
The media enjoy special protection by virtue of their democratic role and function as public watchdogs, see, for example, the European Court of Human Rights’ judgment in the case Jersild vs Denmark (ECtHR-1989-15890), paragraph 31.
At the same time, freedom of expression is not absolute and must be weighed up against other rights and interests, see article 100(2) of the Norwegian Constitution and international human rights conventions, especially article 10 no. 2 of the European Convention on Human Rights (ECHR). For example, it is clear that the right to privacy, including honour and reputation, stated in article 8 of the ECHR enjoys the same protection as freedom of expression. Article 17 of the ECHR also prohibits the abuse of rights, which among other things means that hateful statements are not protected according to article 10 of the ECHR. Furthermore, article 98 of the Norwegian Constitution contains a general equality principle and a general non-discrimination principle, and Norway has a duty under the ECHR, ICCPR and several other international conventions to in various ways protect different groups against hatred, persecution and discrimination. This is stipulated in national legislation, including in section 185 of the Penal Code and section 13 of the Equality and Anti-Discrimination Act.
5. Demarcation
The education, research and development sectors have also been counted as part of society’s freedom-of-expression infrastructure, see Report to the Storting (White Paper) no. 26 (2003-2004) item 7.6.4, but are not covered by the Commission’s mandate. These sectors raise issues of a slightly different nature, for example linked to the education system’s role in people’s self-development and participation in democratic processes, etc, that can best be assessed in other contexts.
6. Relationship with other ongoing work
The Commission’s mandate is so general and wide-ranging that it will necessarily touch on other ongoing work in several ministries’ areas of responsibility. It is therefore important that the Commission finds out about, and looks at, any overlapping or adjacent review work within its mandate.
7. Administrative issues
The Commission will have its own secretariat, administratively linked to the Ministry of Culture. If necessary, the Commission may invite professional assistance and ideas along the way, including from resource and expertise environments and affected authorities.
The Commission is to base its work on the Instructions for Official Studies and Reports. The Commission is to give an account of the economic, administrative and other important consequences of its proposals. At least one proposal (alternative) must be based on the unchanged use of resources.
The Commission’s report in the form of an Official Norwegian Report (NOU) is to be presented to the Ministry of Culture by 15 August 2022.
The Commission’s budget will be set by the Ministry of Culture. The Personnel Handbook for State Employees’ prevailing provisions relating to remuneration, etc, to the chair, members and secretaries of committees apply to the remuneration to the Commission.
Contact the Freedom of Expression Commission:
E-mail: Ytringsfrihetskommisjonen@kud.dep.no
Head of the secretariat:
Ivar A. Iversen:
Ivar-Anders.Iversen@kud.dep.no
Phone: +47 413 17 609