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Malawi’s Right to Information Bill Would Rank 15th Globally

malawiIn November 2015, two years after the country committed to pass a right to information law, Malawi’s Ministry of Justice finally unveiled a draft Access to Information Bill. An Analysis of the Bill released today by the Centre for Law and Democracy (CLD) shows that, if passed, the Bill would be one of the stronger laws in the world, ranking in 15th position on the RTI Rating. The Analysis also reveals that there are important areas where the Bill should be improved before it is passed. Troublingly, since the law was published Malawi’s President, Peter Mutharika, has called for it be significantly weakened, demanding that it apply only to information generated after it is adopted.

“Restricting the right to information to future documents would dramatically undermine the impact of the law,” said CLD’s Senior Legal Officer, Michael Karanicolas. “Rather than weakening the Bill, the priority for the government should now be on getting it passed into law.”

Click here for the full Analysis
Click here for the draft Access to Information Bill
Click here for the RTI Rating Score

The Bill has a number of positive features, including a relatively broad scope, strong promotional measures and a good public interest override. Some of CLD’s key recommendations include:
• Sanctions for misuse of information that has been disclosed should be removed.
• The Bill should overrule Malawi’s Official Secrets Act to the extent of any conflict.
• Exceptions for personal privacy and Cabinet records should be significantly narrowed in scope.
• Malawi should commit to dedicating additional resources for the oversight body.
• The law should make it clear that it applies to the office of the President.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy

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International Partnership Mission Releases Recommendations for Indonesia

LuhutThe 2015 International Partnership Mission to Indonesia (IPMI) has released its Observations and Recommendations, including a detailed list of suggested measures to protect freedom of expression in the country. The Observations and Recommendations focus on challenges faced by local and foreign journalists, legal and regulatory threats to freedom of expression, and Indonesia’s continuing climate of impunity for attacks against journalists and media workers.

Click here to read the Recommendations

“There has been little demonstrable progress following the recommendations offered by the mission a year ago, despite significant interventions by local civil society organisations”, the mission said. “The government of President Widodo should do moreto advance media freedom and protect journalists.”

Among the IPMI’s main recommendations are:
• The order opening Papua to foreign journalists should be formalised in writing and measures should be taken to stem continuing resistance to international access.
• Defamation should be decriminalised.
• Invasive web filtering and surveillance practices should be ended.
• The government should develop a plan to promote journalists’ safety.
• The government should reopen investigations into unsolved journalistkillings and commit to bringing the perpetrators to justice.
• The National Police shouldestablish a formal procedure for investigating allegations of police violenceagainst the media.

In the course of its five-day mission in November 2015, the IPMI travelled to Makassar (South Sulawesi), Jayapura (Papua) and the capital, Jakarta. It met with journalists and civil society representatives, as well as LuhutPandjaitan, Indonesia’s Coordinating Minister for Politics, Law and Security, and Fransiscus Mote, spokesman for the Papuan governor’s office.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
+1 902 448 5290
www.law-democracy.org
twitter: @law_democracy

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Sri Lanka Proposes Strong Right to Information Act

Photo by Christophe Menebœuf

Photo by Christophe Menebœuf

The Sri Lankan Cabinet has approved a draft Right to Information (RTI) Act which, if passed into law, would be among the strongest in the world. Although Sri Lanka is a relative latecomer in this area – being the only country in South Asia apart from Bhutan that has yet to adopt an RTI law – an assessment of the draft Act by the Centre for Law and Democracy (CLD) gives it a score of 120 out of a possible 150 points on the RTI Rating, which would make it the seventh strongest law in the world. At the same time, CLD’s Analysis points to a number of areas where further improvements are recommended.

Click here to read the Analysis
Click here to read the draft Law

“We very much welcome the fact that Sri Lanka finally seems to be bringing to fruition a project that started nearly 14 years ago”, said Toby Mendel, Executive Director of CLD. “Although the draft Act is robust, we hope that the relevant authorities will take advantage of this unique opportunity to introduce further improvements so as to create a really excellent RTI law.”

The draft Act has a number of positive features, including a broad scope, a narrow regime of exceptions and a good package of promotional measures. CLD’s recommendations include the following:
• Foreigners, as well as citizens, should benefit from the right of access.
• A number of measures should be adopted to enhance further the independence of the oversight body, the Right to Information Commission.
• The system for proactive publication should rely more on online publication systems.
• Third parties should not enjoy a veto over the disclosure of information provided by them.
• The overall time limit of ten years should apply to all exceptions that protect public interests.
• The Commission should enjoy enhanced powers and its decisions should be binding.
• The law should provide protection for whistleblowers.

CLD urges the Sri Lankan authorities to amend the draft Act so as to provide an even more robust basis for the right to information in the country.

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

This press release was reprinted in full by The Colombo Telegraph and the the Sri Lanka Guardian.

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Myanmar Media Lawyers Commit to Engaging on Broadcast Reform

IMG_1238The Myanmar Media Lawyers’ Network (MMLN) and the Centre for Law and Democracy (CLD) hosted a workshop on 29 November to discuss changes to the country’s broadcasting framework, and how they will impact freedom of expression in the country. The workshop, which was carried out with support from International Media Support (IMS), featured a robust discussion about the country’s new Broadcasting Law and how it measures up against international standards.

“The new Broadcasting Law is a very significant development in terms of democratising the media landscape in Myanmar,” said Toby Mendel, Executive Director of CLD. “It is very good to see that the MMLN is getting involved in this issue, given the centrality of broadcast regulation to a healthy media environment.”

One issue that participants focused on was the National Broadcasting Council, which is tasked with regulating broadcasting. The Broadcasting Law requires the Council to be established by the end of February, after consultations with the public and civil society. MMLN members made a commitment to be actively engaged in the consultation process, once it is announced.

“It is important for the MMLN to make its voice heard as part of the consultation process for selecting National Broadcasting Council members,” said Than Zaw, Secretary of the Myanmar Media Lawyers’ Network. “We will be following the situation closely and will do what we can to ensure that competent and independent members are appointed.”

In addition to MMLN and CLD speakers, the workshop featured a presentation from U Hein Lat, General Manager for Programming at SkyNet, one of Myanmar’s biggest broadcasters. The event was the latest in a series of workshops that the MMLN and CLD have held for lawyers in 2015.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
+1 902 448 5290
www.law-democracy.org
twitter: @law_democracy

Than Zaw Aung
Secretary
Myanmar Media Lawyers’ Network
+95 9 795586316
thanzawau@gmail.com

Esben Q. Harboe
Programme Manager
International Media Support
eh@mediasupport.org
+45 5210 7805
www.mediasupport.org
@forfreemedia

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Myanmar’s National Right to Information Coalition Expands to Shan State

imagesOn 24 November 2015, over 70 representatives from the Eastern Shan State Civil Society Network met in Tachileik to discuss the right to information (RTI) in Myanmar. The workshop was hosted by Pyi Gyi Khin, a Myanmar-based NGO working on this issue, along with the Centre for Law and Democracy, with the support of International Media Support, USAID and FHI 360. It featured in in-depth discussion of the benefits of RTI and the elements of a strong RTI law.

“It is great to see support for RTI growing across Myanmar,” said Toby Mendel, Executive Director of CLD. “We hope to see formal progress on this issue, in the form of a draft RTI law, in addition to growing public awareness of its importance.”

The workshop was the third in a series, following successful events in Yangon and Mandalay. A fourth workshop is scheduled to take place on 29 November in Lashio, with workshops in Pathein and Taunggyi planned for December. The idea is that, at the end of the series of workshops, representative from each workshop will meet to form a National RTI Working Group.

“We see strong right to information legislation as fundmental to Myanmar’s democratic transition and we are committed to working to make this right a reality,” said Nwezin Win, Executive Director of Pyi Gyi Khin.

The workshop participants unanimously endorsed the Joint Statement on the Right to Information in Myanmar, which was drafted at the first workshop in Yangon in Novemeber 2014, and subsequently endorsed by the participants of the Mandalay workshop.

Click here to read the Joint Statement

“We are happy to support civil society in their efforts to support right to information legislation in Myanmar,” said Esben Harboe, Programme Manager for IMS’ work in Myanmar. “We see this right as crucial to guaranteeing democratic accountability.”

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
+1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

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UNEP: Draft Information Policy Better But More Needed

The_Earth_seen_from_Apollo_17Almost exactly 18 months ago, when CLD commented on the United Nations Environment Programme (UNEP) first ever Access-to-Information Policy, the title of our press release was “Practise what you preach”. This reflected the hypocrisy of UNEP advising others to adopt strong rules on the right to information (RTI) while putting in place a very substandard access policy for itself. UNEP has, as intended, duly moved forward to develop a longer-term policy. An analysis by CLD of their 12 November 2015 draft Policy shows that improvements have been introduced, but that far more is needed to bring it into line with international standards or better practice by inter-governmental organisations.

Click here to read the Note

“We welcome the fact that UNEP is moving forward to replace its weak Access-to-Information Policy”, said Toby Mendel, Executive Director of CLD. “Although the new draft is stronger, we expect far more of the lead UN environmental body in terms of openness.”

The draft Policy has some positive features, including a broad presumption in favour of disclosure “in the absence of a compelling reason for confidentiality”. However, there are a number of problems with the draft, including the following:
• An unnecessarily complex and potentially limited definition of information covered.
• The absence of any commitment to provide assistance to requesters who need it.
• A very broad regime of exceptions including a veto for third parties regarding information they deem to be confidential, a catchall for information which “must be deemed confidential” and a highly discretionary public interest override.
• An oversight body – the Access-to-Information Panel – which merely advises the Executive Director (i.e. rather than actually making independent decisions) and which is comprised of two staff members and just one external expert, all appointed by the Executive Director.

CLD urges UNEP to revise the draft Policy so as to bring it more fully into line with international standards.

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

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International Delegation calls on Indonesian President to Address Media Freedom Concerns

LuhutAn international delegation of media and freedom of expression organisations met with the Indonesian government to discuss the state of media in the country. It highlighted concerns regarding journalist safety and an environment that poses significant threats to freedom of expression.

At a meeting on Thursday, Coordinating Minister for Political, Legal and Security Affairs Luhut Binsar Panjaitan re-committed, on behalf of the Widodo administration, to free press access to Papua and promised to review outstanding cases of killings of local journalists raised by the mission. The Minister was open to further communication with the media and civil society, and welcomed further recommendations.

The International Partnership Mission to Indonesia travelled to the country to meet with journalists, government and civil society representatives to review the media environment one year on since its first visit in December 2014. Significantly, it also conducted a fact-finding visit to Papua.

Publicly declared open to foreign journalists by President Joko Widodo in May 2015, Papua and West Papua have been restricted for international media for half a century. Access remains problematic, with obstacles being raised by local military and police. The mission met with Papuan journalists and media activists who described an atmosphere of surveillance and intimidation, as well as claims of security agents posing as journalists.

The mission also heard about challenges to freedom of expression more broadly across the country. Continued violence against the media and the failure to bring perpetrators to justice fuels further attacks, and leads to self-censorship. The digital space is an emerging front line for the media, meanwhile the Electronic Information and Transactions Law and the broader Criminal Code are being abused to silence critical voices.

“In a region where the press is under sustained attack, Indonesia has a leadership role to play in defending media freedoms,” the mission said. “There has been little demonstrable progress following the recommendations offered by the mission a year ago, and despite significant interventions by local civil society organisations. The government of President Widodo should do more to advance media freedom and protect journalists.”

Click here to read the 2014 IPMI Recommendations

On its first visit, the mission was briefed on the 2009 Anak Agung Prabangsa murder case in Bali, which as a result of cooperation between media, police and local government resulted in the prosecution not only of the killers but also of the mastermind.

“The Prabangsa case proves that Indonesia can tackle impunity,” the mission said. “We welcome the dialogue that has begun with the Widodo administration.”

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
+1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

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Vietnam: Draft Right to Information Law a Good Start

Flag_of_Vietnam.svgVietnam now appears to be moving forward with its draft law on access to information held by public authorities (the Law on Access to Information), which is expected to be adopted by the National Assembly in 2016. Discussions about such a law have been ongoing for some time, so it is heartening that the country now appears to be moving forward on this key issue. At the same time, an Analysis released today by the Centre for Law and Democracy (CLD) of an August version suggests that the draft Law still has a long way to go to come up to international standards, garnering only 59 points out of a possible 150 on the RTI Rating, putting it in 93rd position globally out of 102 countries.

Click here to read the Analysis
Click here to read the Analysis in Vietnamese
Click here to read the draft Law

“It is very encouraging that Vietnam is moving forward to adopt a right to information law”, said Toby Mendel, Executive Director of CLD. “Hopefully, however, some major changes will be made to the draft before it is actually adopted or the law may be too weak to bring about real change in terms of government openness.”

The draft law has some positive features, including its coverage of all three branches of government and relatively strong promotional measures. However, there are a number of areas where it stands to be improved, including the following:
• Public authorities should be defined to include the police, security bodies and State-owned enterprises, as well as private bodies which undertake public functions.
• More detailed rules on lodging and processing requests should be added.
• The rules on exceptions should be brought together into a much tighter and more coherent regime which only protects narrowly defined interests against specific harm.
• An independent administrative body, such as an information commission, should be established to hear appeals against refusals to provide information.
• Protection should be provided to those who release information in good faith, either pursuant to a request or to expose wrongdoing.

CLD urges the Vietnamese authorities to review the draft law with a view to bringing it more fully into line with international standards.

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

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Italy: Draft Right to Information Law Falls Short

220px-Colosseum_in_Rome-April_2007-1-_copie_2B

Italy is one of the few countries in Europe which still does not have a dedicated law on access to information held by public authorities (right to information law). Member of Parliament Anna Ascani has now prepared a dedicated RTI law with a view to addressing this anomaly, but the draft has a long way to go to meet international standards in this area, according to an Analysis prepared by the Centre for Law and Democracy (CLD).

Click here to read the Draft Law
Click here to read the Analysis

“We very much welcome moves in Italy to adopt a dedicated RTI law”, said Toby Mendel, Executive Director of CLD. “But a far more ambitious approach is needed to provide Italians with an effective tool for accessing public information.”

The draft law has some positive features, including a relatively broad scope in terms of the public authorities and information covered, and some interesting innovations in the area of appeals. At the same time, it suffers from a number of weaknesses, including the following:
Only individual citizens are granted a right to make requests for information.
The procedural rules for making and processing requests are far too brief and limited in nature, with key issues such as assistance and time limits simply left out.
The relationship of the RTI law to secrecy provisions in other laws is unclear, too many exceptions are overbroad and/or lack a harm test, and the public interest override is limited to just one exception.
Officials who disclose information in good faith pursuant to the law are not provided with protection against sanctions.
Most of the promotional measures found in better practice laws are missing.

CLD urges the Italian authorities to revisit the draft law and to introduce wide-ranging changes to bring it in more fully into line with international standards regarding 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

This Press Release is also available in Italian

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Liberals and NDP Pledge Access to Information Reform

whatudontknowOne month ago, a coalition of 22 NGOs from across Canada signed a Joint Letter calling on the leaders of Canada’s political parties to make concrete commitments to reform Canada’s outdated access to information system. Today, we are pleased to have received promises from the NDP and Liberal parties to substantively improve the system if elected. The Conservative party has not promised to improve the system as part of their platform, a position which is unfortunately consistent with their overall record on this vital democratic indicator. Canada’s Access to Information Act has not been substantially improved since it was passed over 30 years ago, and a global study ranks Canada 59th in the world as a result of this stagnation.

“After decades of neglect, we are pleased to see that Canadians are finally being offered candidates who believe in a strong right to information,” said Toby Mendel, Executive Director of the Centre for Law and Democracy. “Whoever forms Canada’s next government, we hope they will work to bring the Access to Information Act up to code.”

The Joint Letter called for parties to commit to a comprehensive review of the Access to Information Act, and to specifically express support for four important reforms: expanding the power of Canada’s Information Commissioner to grant her order-making power, expand the scope of the Act to cover all public bodies, limit exceptions to the law and make them subject to a public interest override and create a duty to document decisions. The NDP platform includes commitments that engage all four of these promises, while the Liberals have promised to fulfil two, and have also promised to institute regular reviews of the Access to Information Act. Both the NDP and Liberals have also committed to eliminating all access fees, beyond the initial $5 requesting fee.

The deficit of trust between Canada’s voters and its elected officials has never been higher. However, it is good to see that the right to information has become an issue in this campaign, and that Liberal and NDP candidates for Prime Minister have pledged to take action to repair the critical flaws in the system.

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

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Green Climate Fund: Exceptions Dominante Draft Information Policy

The_Earth_seen_from_Apollo_17In August, the Green Climate Fund (GCF) published a draft Information Disclosure Policy for purposes of public consultation. Once finalised, the Policy will replace the GCF’s Interim Information Disclosure Practice, adopted in October 2013. Moves to adopt a longer-term policy in this area are welcome. However, a Submission supported by CLD and endorsed by a number of other NGOs highlights the vastly overbroad regime of exceptions in the draft Policy, which seriously undermines its potential to ensure access to information.

Click here to read the Submission
Click here to read the draft Policy

“The GCF’s new draft Policy has some positive features, including the fact that it is designed around a proper presumption in favour of disclosure”, said Toby Mendel, Executive Director of CLD. “However, the exceptions dominate the draft, covering a broad range of internal documents and granting third parties a veto over the disclosure of information.”

The draft Policy includes more detailed rules on lodging and processing requests for information and creates an appeals body to process complaints. However, serious weaknesses remain, including the following:
• It fails to establish minimum rules regarding the proactive publication of information.
• The time limits for processing requests are too long and the rules on fees are unclear.
• The rules for disclosing information in the public interest apply only in ‘exceptional’ cases and there is a negative public interest override.
• There are several unnecessary or unduly broad exceptions, as well as exceptions which are not based on the idea of protecting interests against harm.
• The oversight body – the Information Appeals Panel – is dominated by officials rather than being independent, and is not required to provide reasons for its decisions.

CLD urges the GCF to revise the draft Policy so as to address the concerns raised in our Submission and to bring it in more fully into line with international standards.

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

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CLD Event in Halifax September 28

mass emails logo

Join us for a Discussion on 28 September, International Right to Know Day, To Talk About How to Promote Transparent Government

The right to access information held by public bodies, known as the right to information, is internationally recognised as a human right and protected under Canada’s Charter of Rights and Freedoms. The right provides a range of benefits, including promoting democratic participation, combating corruption and helping to foster effective, accountable and responsive government. Although Canada was among the early adopters of right to information legislation, our laws are now seriously outdated. An assessment of national laws by the Centre for Law and Democracy puts the federal Access to Information Act at 59th position in the world. Most provinces and territories fare little better; Nova Scotia ranks 50th.

Against this gloomy backdrop, a ray of light has emerged. Newfoundland and Labrador has undertaken the most ambitious reform programme in recent memory and a new law adopted earlier this year has turned the province into a global leader. This event, held on International Right to Know Day, will discuss the right to information in a Canadian context, and consider how to strengthen and promote transparent government across the country.

Moderator:
Catherine Tully, Information and Privacy Commissioner, Nova Scotia

Panellists:
Steve Kent, Deputy Premier, Newfoundland and Labrador
Toby Mendel, Executive Director, Centre for Law and Democracy
Maria Lasheras, Chief Information Access and Privacy Officer, Nova Scotia
Sean Murray, Office of the Information and Privacy Commissioner, Newfoundland and Labrador

Halifax City Hall: 28 September 2015, 6 pm-8 pm

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Fix Canada’s Broken Access to Information System

whatudontknowThe undersigned organizations have issued a Joint Letter to the major political parties in Canada calling on them to make concrete commitments to reform Canada’s access to information system.

A strong access to information system is vital to maintaining a healthy democracy. The public has the right to obtain the information it needs to participate meaningfully in the democratic process, while also holding Canada’s public officials and Members of Parliaments accountable. The current system is failing Canadians.

“When the Access to Information Act was adopted over 30 years ago, Canada was a world leader on this important democratic right,” said Toby Mendel, Executive Director of the Centre for Law and Democracy. “But decades of stagnation have left us in a miserable 59th position globally, far behind countries like India, Mexico, South Africa and Slovenia.”

“Canadians are being left in the dark,” said Tom Henheffer, Executive Director of Canadian Journalists for Free Expression. “We have a right to know in this country and it’s being undermined. Urgent access to information reform is needed to hold politicians and public institutions accountable, to keep the public informed and to ensure Canadian democracy continues to function.”

“It is long past time these changes were made,” said Vincent Gogolek, Executive Director of Freedom of Information and Privacy Association. “The black holes in the Access to Information Act have to be closed.”

Our country deserves an open and accountable government. Political parties must make a clear electoral promise to undertake a comprehensive process of consultation leading to reform of the Access to Information Act. They must also express specific support for the rapid adoption of the following four reforms following the election:
1. Strengthen the Office of the Information Commissioner with a larger mandate and order-making power.
2. Eliminate loopholes and blanket exclusions and minimize exceptions to the Access to Information Act.
3. Expand the scope of the Act to include all public authorities and other bodies which perform a public function or receive significant public funding.
4. Require public officials to document and preserve all records of their decision-making.

How can Canadians help reform Canada’s access to information system?

• Send an email to your representatives: using the following simple one-click platform, you can easily make your right to information a priority to federal party leaders and your local MPs and senators based on your postal code.
• Share your views on social media: tweet at Secretary of the Treasury Board @TonyclementCPC, Liberal Open Government Critic @Scott_Simms and NDP Treasury Board Critic @MRavignat using #ATIreform and #cdnfoi to let them know that you want to see immediate reforms to Canada’s access to information system.

Signatories:

British Columbia Civil Liberties Association (BCCLA)
Canadian Association of Journalists (CAJ)
Canadian Media Guild/CWA Canada
Canadian Journalists for Free Expression (CJFE)
Canadian Taxpayers Federation (CTF)
Centre for Law and Democracy (CLD)
Centre for Social Justice
Evidence for Democracy
Fédération professionnelle des journalistes du Québec (FPJQ)
Freedom of Information and Privacy Association (FIPA)
Greenpeace Canada
International Civil Liberties Monitoring Group
Lawyers’ Rights Watch Canada
PEN Canada
Politics of Evidence Working Group
Newspapers Canada
Open Media
Our Right to Know
Right to Know Coalition of Nova Scotia
Voices-Voix
Association des Journalistes Indépendants du Québec
World Association of Community Radio Broadcasters (AMARC)

Centre for Law and Democracy (CLD) works around the world to promote, protect and develop those human rights which serve as the foundation for or underpin democracy, including the rights to freedom of expression, to vote and participate in governance, to access information and to freedom of assembly and association.

Canadian Journalists for Free Expression (CJFE) monitors, defends and reports on free expression and access to information in Canada and abroad. Rooted in the field of journalism, CJFE promotes a free media as essential to a fair and open society. CJFE boldly champions the free expression rights of all people, and encourages and supports individuals and groups in the protection of their own and others’ free expression rights.

The Canadian Association of Journalists is a professional organization with more than 600 members across Canada. The CAJ’s primary roles are public-interest advocacy work and professional development for its members.

The Canadian Taxpayers Federation is Canada’s leading non-partisan citizens’ advocacy group fighting for lower taxes, less waste and accountable government. Founded in 1990, the CTF has more than 84,000 supporters and seven offices across Canada. The CTF is funded by free-will, non tax-receiptable contributions.

Newspapers Canada is the voice of Canada’s newspapers, representing over 800 daily, weekly and community newspapers. One of the association’s missions is to advance the cause of freedom of expression in Canada generally and to advocate the right to freedom of expression of individuals, including freedom of the press and other media of communication and the right of people to have a press free from governmental control or restrain

Freedom of Information and Privacy Association (FIPA) is a non-partisan, non-profit society established in 1991 to promote and defend freedom of information and privacy rights in Canada.

For further information and media enquiries, please contact:

Toby Mendel
Executive Director, Centre for Law and Democracy (CLD)
toby@law-democracy.org
902-431-3688

Tom Henheffer
Executive Director, Canadian Journalists for Free Expression (CJFE)
thenheffer@cjfe.org
647-992-4630

Nick Taylor-Vaisey
President, Canadian Association of Journalists
nick@caj.ca

Vincent Gogolek
Executive Director, BC Freedom of Information and Privacy Association
604-739-9788
www.fipa.bc.ca

Aaron Wudrick
CTF Federal Director
awudrick@taxpayer.com
613.295.8409

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Quebec: Access to Information Reform Proposals Only a Start

Flag_of_Quebec.svg The government of Quebec has put forward a detailed set of proposals to reform its law on access to information and protection of personal data, in the form of the policy paper, Orientations gouvernementales pour un gouvernement plus transparent, dans le respect du droit à la vie privee et la protection des renseignements personnels. The Centre for Law and Democracy has prepared a submission outlining the further changes it believes are needed to bring Quebec’s right to information law more fully into line with international standards in this area.

Click here to read the Analysis
Click here to read the follow-up
Click here for a follow-up letter that CLD drafted

The government’s proposals are, for the most part, positive”, said Toby Mendel, Executive Director of CLD. “But a far more ambitious set of reforms are needed to address the serious weaknesses of the current Quebec law.

Some of the key recommendations in the CLD analysis are as follows:
• The law should apply to all information held or which can relatively easily be compiled by public bodies.
• Effective measures should be put in place to promote compliance by public bodies with the timelines in the law and the fees for providing information should be reduced.
• The regime of exceptions should be reviewed and amended to give proper effect to the proposal in Orientation No. 6, which calls for all exceptions to be strictly harm-based.
• The law should include a broad public interest override for all exceptions.
• Exceptions which are overbroad or unnecessary should be reviewed and repealed or amended.
• The oversight body, the Commission d’accès à l’information (CAI), should retain its current adjudicative function.

CLD urges the government of Quebec to revisit its proposals with a view to introducing more robust amendments to its right to information law.

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

This Press Release is also available in French

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Trinidad and Tobago: Problems with Cybercrime Bill

Trinidad & Tobago map A draft Cybercrime Bill prepared by the government of Trinidad and Tobago would criminalise a wide range of legitimate digital activity, according to an analysis of the Bill released today by the Centre for Law and Democracy (CLD). Although the Bill has formally lapsed, it is likely that a similar draft will be introduced in the near future.

The draft Cybercrime Bill is very significantly overbroad in terms of the types of online expressive activity it would render illegal”, said Toby Mendel, Executive Director of CLD. “Far more attention needs to be given to the numerous provisions that restrict free speech.

Some of the key problems with the Bill are as follows:
• Many of the offences it creates are drafted in very broad terms so as to capture innocuous online activities. Some of these shift the onus onto users to provide legal justification for activities which are only potentially harmful, instead of defining what is prohibited narrowly so as to capture only harmful activity.
• A number of provisions are unnecessary since they duplicate existing legal provisions, creating confusion and in some cases heavier penalties for the commission of offences online.
• The definition of cyberbullying is significantly overbroad.
• The Bill would criminalise the otherwise innocent receipt of computer data by third parties, including journalists.

CLD urges the government of Trinidad and Tobago to revisit the Bill with a view to preparing a draft that is more in line with international human rights standards, in particular relating to freedom of expression.

The CLD analysis and the draft Bill are available here and 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

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Mandalay CSOs Join National RTI Coalition

Flag_of_Myanmar.svgOn 23 July 2015, a group of 40 civil society representatives from across Upper Myanmar came together in Mandalay to discuss the importance of the right to information (RTI) to the country’s democratic transition. The participants agreed to form an Upper Myanmar RTI Working Group and to select members to join the central RTI Working Group, which is coordinating advocacy on this issue nationwide. The participants also unanimously endorsed the joint statement which was adopted at a November 2014 workshop on this issue.

Click here to read the Joint Statement, in English and Burmese

“We are thrilled to see that Myanmar’s civil society has embraced this issue so enthusiastically”, said Toby Mendel, Executive Director of CLD. “While Myanmar’s democratic transition still has a long way to go, this level of energy certainly bodes well for the country’s future.”

“Passing a right to information law would be a key milestone for Myanmar.” said Esben Harboe, Programme Manager for IMS’ work in Myanmar. “We are happy to support civil society in pushing towards this goal.”

The workshop, which featured in-depth discussion on the benefits of RTI and the elements of a strong RTI law was the latest in a series of workshops on RTI which have been hosted by the Centre for Law and Democracy, with the support of International Media Support. Future workshops in Myanmar’s Shan region are planned for later this year.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
+1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

Esben Q. Harboe
Programme Manager
International Media Support
eh@mediasupport.org
+45 5210 7805
www.mediasupport.org
@forfreemedia

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Myanmar Lawyers’ Workshop Focuses on Freedom of Expression

MMLN resizeOn 25 July 2015, the Centre for Law and Democracy (CLD) and the Myanmar Media Lawyers’ Network (MMLN), with the support of International Media Support (IMS), carried out a workshop for lawyers on defamation law and restrictions on freedom of expression in the name of national security. The workshop, which involved 25 lawyers from Yangon, is the latest in a series of events arranged by the MMLN, a network of lawyers dedicated to promoting freedom of expression which was founded in 2014.

The topics were chosen due to their relevance to Myanmar’s ongoing democratic transition. Over the past week, two editors from the Myanmar Herald were convicted of criminal defamation for an interview they published which criticised President Thein Sein. Their lawyer, U Zaw Linn, was among the speakers.

Criminal defamation laws have no place in a democratic country and they certainly should not be used to stifle criticism against the Head of State,” said CLD Executive Director Toby Mendel.

The workshop also discussed the Bi Mon Tae Nay case, in which five journalists, editors and publishers were charged with making statements which “alarmed the public” after their journal erroneously reported that Aung San Suu Kyi had formed an interim government, a subject which, according to international standards, does not touch on national security.

It is important for Myanmar’s legal community to evaluate the strengths and weaknesses of our country’s laws, particularly where they impact on important human rights,” said Than Zaw, Secretary of the Myanmar Media Lawyers’ Network.

For further information, please contact:

Than Zaw Aung
Secretary
Myanmar Media Lawyers’ Network
+95 9 795586316
thanzawau@gmail.com

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
+1 902 448 5290
www.law-democracy.org
twitter: @law_democracy

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Analysis of Nepal’s Constitutional Proposals on Freedom of Expression, Media Freedom and the Right to Information

Statement by the Nepal International Media Partnership
23 July 2015
prepared by the Centre for Law and Democracy

The government of Nepal has recently released a new version of the draft Constitution, which is now being considered by Parliament. This Joint Statement by the Nepal International Media Partnership (NIMP) provides an analysis of the draft Constitution from the perspective of international guarantees of freedom of expression. It is intended to support the government and Parliament of Nepal, as well as other local stakeholders, with a view to ensuring that the final version of the Constitution is as fully in line with international standards as possible.

The international community has been supporting the promotion of freedom of expression in Nepal for more than ten years, including through eight International Missions to Nepal, the most recent of which took place from 19 to 23 April 2015. The NIMP is founded on a shared long-term objective of promoting freedom of expression in cooperation with local stakeholders, including public sector actors and civil society.

This Joint Statement focuses on three of the constitutional proposals on human rights, namely those relating to freedom of expression, media freedom and the right to information. It should be read in conjunction with the March 2012 International Fact Finding and Advocacy Media Mission to Nepal: 23-27 February 2012: Analysis of Constitutional Proposals on Freedom of Expression, Media Freedom and the Right to Information, which it largely echoes, given that the constitutional proposals in these areas have hardly changed since that time.

The comments in this Joint Statement are based on the International Covenant on Civil and Political Rights (ICCPR) a legally binding international treaty which Nepal ratified in May 1991. The ICCPR is the main international human rights treaty guaranteeing the rights to freedom of expression, in particular in its Article 19. It is abundantly clear from authoritative interpretation of Article 19 that it embraces freedom of expression broadly, including media freedom and the right to access information held by public authorities (the right to information).

It is also clear that the right to freedom of expression is not absolute; Article 19(3) of the ICCPR lays down a strict three-part test for assessing the legitimacy of any restrictions on freedom of expression. This test only recognises as legitimate restrictions which a) are provided by law; b) protect one of the interests listed in Article 19(3), namely the rights or reputations of others, national security, public order (ordre public), public health or public morals; and c) are necessary to protect that interest.

I. Guarantee of Freedom of Expression

Article 22 of the draft Constitution guarantees freedom of expression stating, simply: “Every citizen shall have the following freedoms: (a) Freedom of opinion and expression”. While this is useful, it lacks some of the positive attributes of international guarantees inasmuch as it only applies to citizens whereas international law and better comparative constitutional practice provides protection to everyone.

More important is the fact that Article 22 would allow for far greater restrictions on freedom of expression than is permitted under international law. The most important area of difference between international law and the draft Constitution in this regard is the grounds for restricting freedom of expression. Instead of simply protecting national security, the draft Constitution protects “nationality, sovereignty, independence and integrity”. It is not clear what exactly is meant by “nationality” but it is hard to see how a mere expression could harm nationality, or what sort of expression might legitimately be restricted to protect this ‘interest’. The term “integrity” is also problematical and international law protects as legitimate advocacy in favour of separation as long as it does not incite to violence as part of this. International law also does not permit restrictions on freedom of expression which protect “the harmonious relations subsisting among the federal units”, which would cover important political speech.

Article 20(2) of the ICCPR requires States to ban advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (‘hate speech’). Article 22 of the draft Constitution goes far beyond this by prohibiting any statement which would “jeopardize the harmonious relations … among peoples of various castes, tribes, religions or communities”. This fails to respect international standards in this area and could easily be abused for political reasons. It would, for example, prohibit legitimate public debate about the complex and often difficult issue of racism.

Three of the grounds for restrictions on freedom of expression in Article 22 – namely “any act of defamation, contempt of court or incitement to an offence” – do not protect legitimate interests but, instead, types of laws. The interest protected by defamation laws, for example, is the reputation of others. This is problematical because it suggests that these laws are themselves legitimate. Instead of referring to types of laws, the Constitution should refer to relevant interests, such as reputation, the independence and authority of the judiciary and public order.

There are also important differences between the standard of harm required to justify restrictions under international law and those found in Article 22. International law requires restrictions to be necessary, which is interpreted as imposing a high standard including that restrictions are clearly and narrowly defined, that they serve a pressing social need, that they are the least intrusive measure which will be effective in protecting the legitimate interest, that they are not overbroad and that they are proportionate. In stark contrast, Article 22 uses the much more permissive terms of ‘may undermine’ or ‘may jeopardize’.

II. Guarantee of Media Freedom

Article 24 of the draft Constitution is welcome inasmuch as it explicitly rules out censorship of all types of media, as well as the closure, cancellation of registration or interruption of media outlets, although it does envisage the regulation of the media. However, it also suffers from imposing unduly broad restrictions on freedom. The criticisms above regarding Article 22 essentially apply in the same way to Article 24, which includes a very similar provision on restrictions.

III. The Right to Information

The guarantees for the right to information in Article 32 of the draft Constitution are unduly narrow. First, under international law this right, like the general right to freedom of expression, is enjoyed by everyone, not just citizens. Second, under international law the right applies to all information, not just information deemed to be of interest to the citizen or the general public. One might reasonably assume that if someone is seeking information, that information is of concern to him or her. More importantly, this limitation might be interpreted in an unduly restrictive manner by the authorities, for example to refuse access to information which they do not deem to be of concern to a citizen or the public.

The approach to restrictions on the right to information in Article 32 is very problematical inasmuch as the right does not extend to “any matter of which secrecy is to be maintained by law”. This effectively recognises limitation on the right, as long as it is found in a law, and effectively fails to place any limits or conditions on laws which restrict the right to information.

Recommendations:
To bring the provisions on freedom of expression, freedom of the media and the right to information in the draft Constitution into line with international law, we suggest the following:
➢ The rights to freedom of expression and information should apply to everyone, not just citizens.
➢ The terms “nationality”, “integrity” and “harmonious relations subsiding among federal units” should be removed as grounds justifying restrictions on freedom of expression.
➢ The references to “harmonious relations subsisting among … peoples of various castes, tribes, religions or communities” should be replaced by the idea of incitement to violence, discrimination or hatred against these groups.
➢ The references to types of laws – namely defamation, contempt of court and incitement to an offence – should be replaced with references to types of interests, such as ‘reputation’, the ‘independence and authority of the judiciary’ and ‘public order’.
➢ The weak standards in Articles 22 and 24, such as “may undermine” or “may jeopardize”, should be replaced by stronger tests, such as “would be likely to undermine”.
➢ The right to information should cover all information, not just information deemed to be of concern to a citizen or the public.
➢ A test for restrictions on the right to information should be introduced into article 32, which should be modelled along the same lines as the test for restrictions on the general guarantee of freedom of expression.

Possible Constitutional Provisions

Based on these recommendations and other comments in this Analysis, the following is a possible form for the constitutional proposals on the rights to freedom of expression, media freedom, and the right to information:

22. Right to Freedom
(2) Everyone shall have the following freedoms:
a. Freedom of opinion and expression, which include the right to seek, receive and impart information and ideas through any media;

Provided that,
1. Nothing in sub-clause (a) shall be deemed to prevent the making of laws which impose reasonable restrictions on expressive activities which are likely to undermine the sovereignty or independence of Nepal, which incite to hatred, discrimination or violence against people based on their caste, tribe, religion or community, or which are likely to harm the rights or reputations of others, the independence or authority of the judiciary, public order or public morality.

24. Right to Mass Communication
(1) No publication, broadcasting or printing of any news item, editorial, feature, article or other written or audio-visual material through any means whatsoever including via electronic means, broadcasting or printing shall be subject to prior censorship.
(2) No radio, television, on-line or other form of digital or electronic equipment, press or other means of communicating, publishing, broadcasting or printing any material shall be closed nor shall registration thereof be canceled due to the content it has disseminated.
(3) No means of communication including via the press, electronic means, broadcasting or telephone shall be interrupted except in accordance with law.
Provided that nothing this Article shall be deemed to prevent the making of laws to regulate radio, television, online or any other type of digital or electronic equipment, press or any other means of communication which otherwise meet the conditions of Article 22.

32. Right to Information:
Everyone shall have the right to demand and receive any information from a public body.
Provided that this shall not be deemed to prevent the making of laws which impose reasonable restrictions on the disclosure of information where this is likely to undermine the sovereignty or independence of Nepal, to incite to hatred, discrimination or violence against people based on their caste, tribe, religion or community, or to harm others’ rights or reputations, the independence or authority of the judiciary, public order or public morality.

For more information, please contact:

Toby Mendel
+1 902 431-3688
toby@law-democracy.org

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Pakistan Aims for Top Position in the RTI Rating

125px-Flag_of_Pakistan.svg A draft Right to Information Act prepared by the government of Pakistan has scored an astonishing 146 points on the RTI Rating, which would put it 11 points ahead of the next best right to information law in the world, namely that of Serbia (which has 135 points). The Centre for Law and Democracy (CLD) today issued a Note analysing the draft Act, pointing to a few areas where the draft could be tweaked to improve it even further.

Click here for the Note
Click here for the draft Act

“This is a remarkable draft RTI law”, said Toby Mendel, Executive Director of CLD. “It would be wonderful if the government of Pakistan were to pass such a strong law and we would then be very happy to work with them and other stakeholders to support implementation.”

Given the superlative score, there are clearly few weaknesses in the draft Act and most of the CLD comments relate to fairly technical matters. One area where improvements could be made, however, is to bolster the independence of the three-person Information Commission. Specifically, CLD recommends that:
• Commissioners be appointed by the President.
• There be prohibitions on individuals with strong political connections and civil servants from being appointed as Commissioners.
• There be stronger both requirements of expertise for and prohibitions on individuals with political connections from being appointed as a Commissioner.
• The budget of the Commission be approved by Parliament.

CLD urges the government and Parliament of Pakistan to move forward to adopt this excellent law, if possible after introducing a small number of amendments to make it even better.

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

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Tanzania: Analysis of Media Service Bill

"Elephant and Kilimanjaro" by Charles Asik from Dar es Salaam, Tanzania. Licensed under CC BY 2.0 via Wikimedia Commons

“Elephant and Kilimanjaro” by Charles Asik from Dar es Salaam, Tanzania. Licensed under CC BY 2.0 via Wikimedia Commons

The Centre for Law and Democracy (CLD) today issued an analysis of the draft Media Services Act prepared by the government of Tanzania. If passed, the draft Act would represent a serious step backwards for freedom of expression in Tanzania. It is extremely broad in scope – covering not only traditional media but also online services and even social media, as well as individual journalists – and it subjects all of these actors to licensing regimes overseen by bodies which are controlled by government. The draft Act also provides for draconian restrictions on media content.

Click here for the Analysis
Click here for a copy of the draft Act

“Far more thought needs to be given to the question of what would be an appropriate regulatory system for the media in Tanzania”, said Toby Mendel, Executive Director of CLD. “A first imperative is to ensure that regulatory bodies are protected against possible political interference but the draft Act also suffers from very significant regulatory overbreadth.”

Some of the other key problems with the draft Act include:
• It subjects online content providers, social media, newspapers and individual journalists to a licensing regime.
• It gives the regulator virtually unfettered discretion to address complaints against the media, without providing any indication of how this might work.
• It provides for only limited defences to allegations of defamation; even truth is not a defence on its own.
• It establishes an extremely broad set of criminal content restrictions, including vague definitions of the crimes of sedition and publishing false news, which have been struck down as unconstitutional in other countries.

CLD urges the government of Tanzania to put in place a broad process of consultation with all interested stakeholders to determine an appropriate way forward in terms of media regulation.

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

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