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Asian Infrastructure Bank: Access to Information Policy Weak

screen-shot-2016-12-05-at-9-09-38-amThe Centre for Law and Democracy (CLD) and the Bank Information Center (BIC) have jointly prepared Comments on the Public Information Interim Policy of the Asian Infrastructure Investment Bank (AIIB) in preparation for the first annual review of the Policy, due in January 2017. The analysis shows that the AIIB is lagging behind other international financial institutions (IFIs) when it comes to information disclosure.

Click here to read the Comments
Click here to read the AIIB’s Public Information Interim Policy

“It is positive that the AIIB adopted an Interim Policy on information soon after it was created”, said Toby Mendel, Executive Director of CLD. “But as we approach the first anniversary of that Policy it is time for the AIIB to significantly upgrade its commitments in this area.”

Some of the key problems with the Interim Policy, as outlined in the Comments, are:
• The scope of proactive publication commitments lags far behind better practice IFIs.
• The regime of exceptions is vastly overbroad, including many open-ended exceptions, lacking harm tests in many cases and failing to provide for any public interest override.
• The failure of the AIIB to adopt guidelines on implementation means that the Interim Policy lacks almost any procedural rules governing the processing of requests.
• Unlike many IFIs, there is no provision for an appeal to an independent oversight body.
• As a matter of practice, the AIIB has on at least some occasions failed to process requests for information.

CLD calls on AIIB to undertake a wide-ranging consultation on the Interim Policy as part of its first annual review and then to introduce major changes so as to bring the rules more into line with the practice of other IFIs.

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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Myanmar: Workshops on Media Freedom and the Right to Information

imagesOver the past few days, the Centre for Law and Democracy (CLD), with support from International Media Support and FOJO Media Institute, hosted a series of workshops with its partners, the Myanmar Media Lawyers’ Network (MMLN), Pyi Gyi Khin (PGK), the Civil Society RTI Technical Working Group and the Myanmar Press Council (MPC). The workshops focused on the right to information and content restrictions in various Myanmar laws. The latter was particularly timely as senior representatives of the Eleven Media Group were taken into custody on allegations of having breached the defamation provisions in the 2013 Telecommunications Law while a CLD sponsored workshop on this was taking place.

“Myanmar has made significant progress in reforming its media laws,” said Toby Mendel, Executive Director of CLD. “But there is still an urgent need to reform the content restrictions in other laws and to adopt a right to information law.”

The workshops provided opportunities for legal experts, senior journalists, leading civil society organisations and members of the MPC to discuss the need for further law reform efforts. Article 66(d) of the 2013 Telecommunications Law, which criminalises not only defamation but also a range of other often vague types of statements disseminated via a “telecommunications network”, was a particular focus due not only to the current arrests but also because of the number of other cases which have been launched in recent months.

An ever increasing number of civil society groups are also embracing the idea that Myanmar needs to adopt a strong right to information law giving individuals a right to access information held by public bodies and generally making government more transparent. There has been little official action on this front since the Ministry of Information released a draft Right to Information Act in February 2016 and held a consultation on it the following month.

For further information, please contact:

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

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Recommendations for Improving the OGP Draft Co-creation Guidelines

8000097421_d3ae06e358_bThe Centre for Law and Democracy (CLD) has prepared a Note on the draft co-creation guidelines prepared by the Open Government Partnership (OGP). The draft guidelines aim to strengthen the OGP’s current consultation requirements. The Note recognises the importance of this objective and the contribution the draft guidelines make to achieving it, while also putting forward a number of recommendations to further strengthen the guidelines.

Click here to read the Note
Click here to read the draft co-creation guidelines

“We very much welcome this important initiative”, said Toby Mendel, Executive Director of CLD. “Consultation on the OGP national action plans remains far too weak in many OGP Participating Countries and further guidance from the OGP as to what is expected will be very useful. CLD has prepared this Note to try to help ensure that the final guidelines are as robust as possible.”

Some of the key recommendations in the CLD Note are as follows:
• The guidelines should be more inclusive in terms of key stakeholders and, in particular, not focus exclusively on civil society.
• Consideration should be given to using the three chronological phases of the national action plans (NAPs) as the primary organisational structure for the guidelines, because this is how activities are actually undertaken. Consideration should also be given to using ‘development’, ‘implementation/monitoring’ and ‘assessment/reporting’ as those three phases (rather than ‘development’, ‘implementation’ and ‘monitoring’).
• More attention is needed throughout the guidelines on the obligation of governments to engage a wide range of stakeholders in these processes.
• More thought needs to be given to the key question of the composition and role of the multi-stakeholder forum, in particular its role as a decision maker for NAPs.

CLD calls on the OGP to continue to improve the draft guidelines in accordance with these recommendations.

For further information, please contact:

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

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Intergovernmental Organisations and the Right to Information

mass emails logoThe Centre for Law and Democracy (CLD) has prepared a Submission on the applicability of the right to information to intergovernmental organisations (IGOs) in response to a call for input from the UN Special Rapporteur on the Right to Freedom of Opinion and Expression. The Submission argues that IGOs are bound to respect human rights, including RTI. Currently, relatively few IGOs outside of the international financial institutions have adopted policies on RTI, but they are coming under increasing pressure to do so.

Click here for the Submission

“IGOs are created and usually funded by States collectively, so they are bound to respect the right to information in the same way as bodies created and funded by individual States”, said Michael Karanicolas, Senior Legal Officer, CLD. “Furthermore, a strong right to information system also brings important benefits to these institutions, such as combating corruption and enhancing public trust.”

In addition to claims that IGOs are bound by RTI, the Submission provides an overview of some of the policies that have been implemented by international financial institutions and UN agencies. Based on existing practice and broadly recognised principles governing RTI, the Submission makes a number of recommendations for IGO policies, including:
• To establish clear and simple procedures for making and responding to requests.
• To define clear and specific exceptions to the right of access.
• To create effective oversight mechanisms, including independent appeals bodies.
• To put in place appropriate promotional measures, including a commitment to review the policy regularly.

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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Some legal reflections on Sri Lanka’s new Right to Information Act

(this piece originally ran in the Sunday Times)

On August 4, 2016, the Government of Sri Lanka passed the Right to Information (RTI) Act, No. 12 of 2016, bringing to fruition over 20 years of campaigning by journalists, civil society, legal professionals and others. The Act means that Sri Lanka has now joined the community of 112 countries globally which have adopted RTI laws. It also addresses the anomaly whereby Sri Lanka was the only major country in South Asia which did not have such a law (Bhutan still does not have one).

Sri Lanka did not just pass an RTI law; it passed a good one! According to the highly respected RTI Rating (www.rti-rating.org), the Act scores 121 points out of a possible total of 150, coming in ninth position globally out of the 111 countries which are assessed on the rating. It comes in second place in South Asia, behind India, a major success story in this area, with 128 points and in fourth place globally.

Congratulations are due to the Government, to the Parliament and especially to the many campaigners who fought tirelessly, especially in the final stretches, to make this happen. Now, the far more complicated task of implementing the law begins. Hopefully the same parties will contribute to that process to ensure that this process is also successful.

Some explanation as to how the RTI Rating works may be useful here. The rating is broken down into seven main thematic categories and then 61 individual indicators. The Sri Lankan law does best in terms of Scope of the Act (where it scores 90% of total possible points), due to its admirably broad coverage of information and public authorities;

It also scores high on Promotional Measures (88%), due to the obligations laid by the Act on public authorities to appoint information officers, maintain their records in good condition and report annually on implementation. Appeals score fairly well (87%), due to the creation of an independent and empowered oversight body in the form of the Information Commission. Right of Access garners an appreciable rating (83%), due to the constitutional guarantee of RTI adopted last year and a clear statement of the right in the Act itself. It may be noted that the Supreme Court of Sri Lanka specifically approved the composition of the commission in its determination relating to the Right to Information Bill.(S.C. (S.D.) No 22/2016).

The Act falters a bit, however, when it comes to Exceptions (77%). This is due in part to a few overbroad exceptions, specifically those in favour of communications between professionals, the privileges of Parliament and trade agreements.

Another problem is that a few exceptions – namely those in favour of information provided by a third party, contempt of court and cabinet memos – do not incorporate a harm test, i.e. they apply regardless of whether or not disclosure of the information would pose a risk of harm to a protected interest.

Some of these exceptions were considered, and upheld, by the Supreme Court in its Determination on the Bill. The court upheld the exception in favour of trade agreements on the basis that this was part of a wider notion of national security. Whatever the merits of this in terms of the Constitution, it must be noted that under international law, it is established that national security should be construed narrowly (absent which it has proven ripe for abuse). Clear standards on this may be found in the Tshwane Principles on National Security and Access to Information. The court also, with very little reasoning, upheld the exception in favour of contempt of court, after expanding it to include a reference to prejudice to the judiciary. The court failed to consider carefully the scope of contempt of court and the fact that it does not in all cases include a harm test.

The provisions in the Act on Requesting Procedures (73%) could also be improved. This is for example by requiring public authorities to transfer requests when another authority holds the information and by eliminating the 14-day period to provide information (on top of the 14 days public authorities are given to assess requests). Further The Act may have clarified what charges may be levied for providing information and recognised a right to reuse freely information which has been provided in response to a request. Finally, a score of only 50% is achieved in the area of Sanctions and Protections, due to the lack of sanctions for public authorities which systematically fail to respect their obligations under the law and the lack of protection for whistleblowers.

Some of these issues could be addressed through legal instruments adopted under the Act such as regulations adopted by the minister (in consultation with the Commission) or rules adopted directly by the Commission.

Regulations could, for example, clarify that the Act applies to both information and documents (to indicate that requesters might either ask for a type of information – the amount spent on transportation for ministers in a given year – or a document – the 2015 budget – which is not currently clear). They could also indicate that public authorities should transfer requests when this is warranted and that public authorities should provide training to their staff on this new right. Rules on open reuse of information could also be put in place via policy instruments. In many countries, for example, open licences which allow for such reuse are automatically appended to all government documents.

The Commission has the power to adopt rules on fees, which could make it clear that it is free to make requests, that charges may only be imposed for reproducing and sending information to a requester, and that poorer citizens do not have to pay even those fees. These measures alone would earn another three points on the RTI Rating, pushing Sri Lanka into sixth place globally. In setting rules on appeals, the Commission could also make it clear that these are free and do not require a lawyer.

Experience in other countries has shown that successful implementation of RTI laws is closely correlated with effective oversight bodies. It will, therefore, be important for the Commission to set clear rules regarding its own operations. Strong internal rules can be important to maintaining the independence and reputation of the Commission. For example, it would be good practice for the Commission to adopt rules on conflicts of interest for members, so as to avoid both actual conflicts and giving the public the impression that there is a conflict.
Sri Lanka has followed a practice which is common in South Asia, but relatively rare elsewhere in the world, namely of banning members of the Commission from “carrying on any business or pursuing any profession” (section 12(2)(a)(v)). Given the lack of clarity of this rule, despite its importance, it would be useful for the Commission to adopt rules elaborating on what it means.

The adoption of the RTI Act is an extremely exciting opportunity for Sri Lanka. In some countries, these laws have transformed the relationship between the government and the people, providing a platform for public participation, serving as a tool for official accountability and being used to expose and thereby combat corruption. In other countries, RTI laws have foundered against the immovable barriers of bureaucratic resistance, a lack of political will and disinterest on the part of the public.

What happens over the next few years will be crucial in determining the future of RTI in Sri Lanka. For the sake of democracy in the country, we can only hope this will be a transformative experience.

By Toby Mendel

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Pakistan: Federal Access to Information Bill Just ‘Average’

125px-Flag_of_Pakistan.svgThe Centre for Law and Democracy (CLD) has prepared a Note on the draft Right of Access to Information Act, 2016, which was prepared by the Standing Committee of Federal Cabinet for Disposal of Legislative Business of Pakistan. According to an assessment based on the RTI Rating, the draft receives 97 points out of a possible total of 150 points, putting it in 35th place globally out of the 111 laws assessed on the RTI Rating, below any other country in South Asia.

Click here for the Note
Click here for Part 1 of the draft Bill
Click here for Part 2 of the draft Bill
Click here for Part 3 of the draft Bill
Click here for Part 4 of the draft Bill
Click here for Part 5 of the draft Bill
Click here for Part 6 of the draft Bill
Click here for Part 7 of the draft Bill
Click here for Part 8 of the draft Bill
Click here for Part 9 of the draft Bill
Click here for Part 10 of the draft Bill
Click here for Part 11 of the draft Bill
Click here for Part 12 of the draft Bill
Click here for Part 13 of the draft Bill

“The right to information law currently in force in Pakistan is unacceptably weak and so any measure to improve it is somehow welcome”, said Toby Mendel, Executive Director of CLD. “But as the provinces of Khyber Pakhtunkhwa and Punjab have clearly demonstrated, Pakistan can do a lot better than this effort.”

Some of the key problems with the draft Act are:
• It is restricted to citizens and the scope of information covered is very limited.
• The rules fail to make it clear that it is free to make a request and that a certain number of pages of photocopies will be provided for free.
• There are duplicate regimes of exceptions and the one in section 7 is far too broad.
• There is no public interest override and third parties have a veto over the disclosure of information provided by them.
• The independence of the Information Commission could be further enhanced.

CLD calls on the Pakistani authorities to substantially improve the draft Act, to bring into more into line with the laws in force in the provinces of Khyber Pakhtunkhwa and Punjab.

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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Sindh Province, Pakistan: Right to Information Law Analysed

Photo by King khurram, Wikipedia

Photo by King khurram, Wikipedia

The Centre for Law and Democracy (CLD) is today releasing its analysis of the Sindh province of Pakistan’s draft Transparency and Right to Information Act, 2016 (draft Act), prepared by the government of Sindh. CLD’s Note on the draft Act reveals that it is a reasonable draft, scoring 96 out of a possible 150 points on the RTI Rating, but that much could be done to bring it more fully into line with international standards. The RTI Act currently in force in Sindh is a carbon copy of the 2002 Federal Ordinance, which languishes in the bottom 20 percent of the RTI Rating.

Click here for CLD’s Note on the draft Act
Click here for a copy of the draft Act
Click here for the RTI Rating score

“We very much welcome the fact that the government of Sindh is reviewing its current, unacceptably weak, RTI law”, said Toby Mendel, Executive Director of CLD. “But given the excellent laws that have been adopted in Khyber Pakhtunkhwa and Punjab provinces, we are confident that Sindh can significantly improve this draft.”

Some of the key weaknesses in the draft Act are as follows:
• It has an insufficiently developed set of procedures for receiving and responding to requests.
• It includes a number of exceptions which are not recognised under international law, are too broad or lack harm tests, and the public interest override is not mandatory.
• The guarantees of the independence of the Information Commission could be improved and there is scope to increase its powers.
• There is no protection for whistleblowers.
• There is no obligation on individual public bodies to produce annual reports on what they have done to implement the law.

CLD urges the government of Sindh to introduce amendments to improve the draft Act so that the people of Sindh can benefit from comparable rights to information to those living in Khyber Pakhtunkhwa and Punjab provinces.

The RTI Rating is available at www.RTI-Rating.org.

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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Congratulations Mexico For the World’s Best Right to Information Law

mass emails logoThis 28 September, International Right to Know Day, is a truly momentous one. It marks five years since the launch of the RTI Rating, a comparative assessment of national legal frameworks for the right to information (RTI) which was developed and applied by the Centre for Law and Democracy and Access Info Europe. The number of countries with RTI laws has continued to climb, reaching 112 as of today. 28 September has now been recognised officially by UNESCO, under the title International Day for Universal Access to Information. And one of the indicators for Sustainable Development Goal (SDG) target 16.10 will assess whether States have adopted and implemented RTI laws.

“CLD is delighted that all of these tremendous developments have come together this year”, said Toby Mendel, Executive Director of CLD. “As part of our celebration of the Day, we have made a big push to update the RTI Rating to include all of the new laws, several of which have just been adopted in the last couple of months.”

The updated RTI Rating includes assessments of the seven RTI laws which have been passed so far in 2016, namely from Argentina (replacing a decree), Kenya, the Philippines, Sri Lanka, Togo, Tunisia (also replacing a decree) and Vietnam, as well as the law from Burkina Faso, which was passed in late 2015. With this, the RTI Rating covers every national RTI law globally apart from Sudan, which we have thus far been unable to obtain. The RTI Rating has also been updated to account for significant reforms that have taken place in Canada and Mexico.

The most notable change is the displacement of Serbia as the top country on the Rating for the first time since it was launched in 2011, by Mexico. Mexico has long been a regional and global leader on this issue, and the newly and substantially revamped General Act of Transparency and Access to Public Information scores an impressive 136 points out of a possible total of 150. This is a significant improvement on their previous score of 117 and just ahead of Serbia, which scores 135 points. Among the most important new improvements is a requirement that exceptions in other laws must be consistent not only with the standards in the right to information law but also Mexico’s international obligations to be valid.

The strongest law among the new countries on the RTI Rating is that of Sri Lanka, which scores 121 points, putting the country in 9th place globally. The passage of this law means that every country in South Asia apart from Bhutan now has an RTI law. The region is generally a strong performer, with every country scoring over 100 points except Pakistan, which continues to languish near the bottom of the Rating.

Tunisia’s law was replaced, in March 2016, with a significantly revamped Organic Law (which is the highest form of statutory law), which earned a score of 120 and moved the country from 45th place internationally all the way up to 10th place, just behind Sri Lanka. The new organic law replaces the Decree Law which was adopted just after the country’s 2011 revolution. Tunisia’s progression into the top tier of global RTI laws is all the more significant given that the Arab World is among the world’s weakest on this important human rights indicator, with only four of the 22 Member States of the Arab League – namely Jordan, Sudan, Tunisia and Yemen – having RTI laws on the books.

Just behind Tunisia is Kenya’s Access to Information Act, adopted in late August 2016, which ranks 14th in the world with a score of 113. This is the latest in a strong trend among African countries to adopt RTI laws, which is now starting to redress the longstanding position of the continent as lagging behind other regions of the world on this issue. It also results in seven African countries being among the top twenty, making it the region of the world with the most countries having this status. The Kenyan law is notable for its very broad coverage of private sector actors, which pushes the already expansive approach on this issue pioneered in Africa to new limits.

In September 2016, Argentines also celebrated the passage of the Ley de Acceso a la información. This does not reach the standards of the laws noted above, scoring 91 points and earning Argentina a ranking of 45th place. However, it is an enormous improvement over their previous decree, which was in the bottom third of the Rating, scoring just 66 points.

Amendments to the RTI rules in Canada, the first significant improvements since the country’s Access to Information Act first came into force in 1983, were more modest, but important nonetheless. CLD was vocal in welcoming the changes, enacted through a new Interim Directive on the Administration of the Access to Information Act, which included a blanket waiver of fees beyond the initial $5 for filing a request and a requirement that information be released in machine-readable and reusable formats wherever possible. Although the modest package of improvements only raised Canada’s ranking to 48th in the world, with a score of 90 points, the government is currently consulting on a more ambitious reform plan.

More middle-of-the-road laws were passed in Burkina Faso and Togo, scoring 79 and 70 points for rankings of 63rd and 79th place, respectively. Both countries have very problematic regimes of exceptions, vague procedures for requests for information and only limited promotional measures. At the same time, these laws represent an important expansion in terms of RTI laws in French-speaking African countries, which is a very welcome development.

The new RTI rules adopted by Vietnam and the Philippines are both extremely weak. Vietnam’s Law on Access to Information scores just 68 points, putting it in 86th place globally. In the Philippines, years of unsuccessful attempts to get an RTI law passed finally resulted in the adoption by the President of Executive Order No. 2 on Freedom of Information. As a set of RTI rules, however, the Order is among the world’s weakest, scoring just 46 points, putting the Philippines in 109th place globally out of the 111 countries on the RTI Rating. A notable weakness is the regime of 160 exceptions, set out in regulations under the Order.

The year 2016 offers ample evidence that strong progress on the right to information continues to be made. With 112 RTI laws now in place, and a 113th expected to come into force soon in Tanzania, there is a strong global trend towards greater recognition of this important right. The incorporation of RTI into SDG Target 16.10 can be expected to provide even greater impetus to this trend. Although the recent cohort of RTI laws have not been uniformly strong, the stellar performance of the new or amended laws in Mexico, Sri Lanka, Tunisia and Kenya continue to push global standards forward. Although there are many battles left to fight – not least working for positive implementation of the new laws – activists around the world have plenty to celebrate this International Right to Know Day.

The full results of the RTI Rating are available at: www.RTI-Rating.org.

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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Workshop for Myanmar Lawyers on Staying Safe Online

14224687_1786635558216386_4492027763021096829_nAlthough just 12% of the population of Myanmar has access to the Internet, online speech is becoming an increasingly important theme in debates around freedom of expression. On 3rd September, the Myanmar Media Lawyers’ Network (MMLN), the Centre for Law and Democracy (CLD), FOJO Media Institute and International Media Support hosted an event for lawyers to discuss ongoing challenges to digital freedom in Myanmar.

“Today’s policies are setting a tone for online speech that will be increasingly important as more people connect,” said Michael Karanicolas, Senior Legal Officer of CLD. “It is important to have a regulatory structure in place which promotes a vibrant online discourse, with all the human rights benefits that bestows.”

The workshop, which was attended by 45 lawyers, featured a presentation from Robert Sann Aung, a well-respected human rights defender who has represented defendants charged under the country’s problematic Electronic Transactions Law for statements made online. Yadanar Tun, of the Myanmar ICT Development Organisation, followed with a discussion about digital security, introducing participants to the basics of how to stay safe online.

“Myanmar’s lawyers have an important role to play in the discussion about regulating freedom of expression online,” said Than Zaw, Secretary of the MMLN. “However, as human rights advocates, we are also potential targets for online attack. It is important for lawyers to understand how to protect themselves.”

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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Comments on Council of Europe Draft Guidelines on Participation

Photo by Adrian Grycuk

Photo by Adrian Grycuk

The Centre for Law and Democracy has prepared a set of Comments on the Council of Europe’s draft Guidelines on Civil Participation in Political Decision-Making. The Guidelines aim to set minimum standards for Council of Europe Member States in terms of ensuring participation in relation to processes of public decision-making. CLD very much welcomes this initiative – which can help improve consultation processes – but also has a number of suggestions for tightening up and improving the draft Guidelines.

Click here to read the Comments

“Practices around consultation on public decision-making vary considerably not only between countries but also among different public authorities within countries,” said Toby Mendel, Executive Director of CLD. “To the extent that these Guidelines set minimum standards for such consultations, they are very welcome indeed.”

The first part of the Comments outlines a number of general concerns, providing recommendations to address them, while the second part provides more specific comments on individual guidelines. Some of the key points made in the first part including the following:
• The document struggles to accommodate the enormous range of public decision-making processes that exist. A clear definition of its scope is needed, along with a system for distinguishing between the different consultation obligations that pertain in the context of different types of decision-making processes.
• The document should recognise the important role of policy, in addition to legal and regulatory tools, in setting formal standards for consultation.
• More attention should be given in the Guidelines to individuals, to offline forms of participation and to marginalised groups.

CLD believes that this is an important initiative and looks forward to working with the relevant actors to continue to improve the document before it is put to the Committee of Ministers of the Council of Europe for formal adoption.

For further information, please contact:

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

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Saint Vincent and the Grenadines: Cybercrime Bill Needs Revision

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Saint Vincent and the Grenadines is preparing to pass a Cybercrime Bill which criminalises a wide range of activities including defamation, obtaining information without lawful excuse and cyberbullying. The Centre for Law and Democracy (CLD) recognises the need to address harmful behaviour online, including in some cases through the criminal law, but it is not legitimate to criminalise defamation and the scope of several of the other crimes as defined in the Bill is simply too broad.

Countries around the world are looking at ways to address harmful content online,” said Toby Mendel, Executive Director of CLD. “Instead of rushing ahead with seriously problematical legislation, Saint Vincent and the Grenadines should build on what we have learned so as to create a more carefully tailored law.”

It is now clear that criminal defamation laws are not consistent with international guarantees of freedom of expression and that penalties of imprisonment for defamation are never legitimate. As the UN Human Rights Committee stated in its 2011 General Comment No. 34, paragraph 47: “States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” There is, furthermore, no need to create a special offence of defamation to cover online speech. Consideration might, however, be given to amending the civil defamation laws, as necessary, so that remedies such as an apology and/or the rights of correction and reply are provided for.

The definition of cyberbullying is far too broad. A far more tailored regime for addressing cyberbullying in the Canadian province of Nova Scotia, which included a similar definition to that found in Saint Vincent and the Grenadines’ Cybercrime Bill, was struck down as unconstitutional, with the court describing the definition as being “a colossal failure” (Crouch v. Snell, 2015 NSSC 340, paragraph 165). The law had been used and abused mainly by adults involved in personal disputes, which had not been the original intention behind adopting it. Proposals to include a crime of disseminating sexually explicit images of another person without their consent (Sexual Harassment by Electronic Communication) could, if carefully prepared (including by removing the reference to “without lawful excuse” – see below – and adding in a public interest defence for appropriate cases), represent a far more tailored way of addressing one of the most serious problems often associated with cyberbullying. These should, therefore, be considered as an alternative to the cyberbullying rules.

Section 7 of the Bill would create an offence of intentionally and without lawful excuse obtaining computer data which is not meant for the individual and which is protected against unauthorised access. Although this might appear to be legitimate, in democracies one does not need a lawful excuse to undertake an activity. Rather, one is free to do anything that is not prohibited by law. As a result, this rule might capture a lot of perfectly innocent browsing activity. This could be substantially narrowed by adding in requirements that the obtaining of the data was illegal or was for an illegal purpose and of intent to use the data for that purpose. Section 11 of the Bill includes an intent requirement along these lines and might be used as a reference for that purpose. Several other sections in the Bill suffer from the same problem of prohibiting activities done “without lawful excuse”.

There are also serious problems with the procedural sections of the Bill, many of which grant judges the power to authorise police action on the basis of an ex parte application (i.e. in the absence of representation by the affected party) made by a police officer. While ex parte applications are justifiable in certain situations (normally characterised by urgency and a high risk of harm), they should be reserved for those situations rather than being employed largely by default as is the case with the Bill. Unduly broad reliance on ex parte applications was another reason the Nova Scotian Act referred to above was struck down (see paragraph 158 and preceding). The jurisdictional scope of the Bill is also significantly overbroad, extending, under section 31(1)(d), to acts which take place entirely outside of Saint Vincent and the Grenadines and which are done by individuals who are not citizens.

The Centre for Law and Democracy strongly recommends that the government of Saint Vincent and the Grenadines review the whole of the Cybercrime Bill to assess its compliance with and to amend it to bring it into line with constitutional and international guarantees of freedom of expression. If this was to be undertaken, we would be happy to prepare a detailed analysis of the Bill and to propose alternative language that would strike a more appropriate balance between the need to prevent harmful expressive activity online and the right to freedom of expression.

For further information, please contact:

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

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Tanzania: Whistleblower Protection Law Welcome but Needs Improvement

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Whistleblowers play a critical role in exposing corruption and other wrongdoing. Because they often do so at great personal risk, it is important for States to grant them legal protection against reprisals for coming forward. Today, the Centre for Law and Democracy is releasing an Analysis of Tanzania’s Whistleblower and Witness Protection Act, which was passed last year, but which the government is currently considering reforming. Although the Act has a number of positive features, such as extending protection across the private and public sectors, it also has a broad list of exclusions where its protections do not apply, including for disclosures relating to national security or where the information is defamatory.

You can read the full Analysis here

We welcome Tanzania’s initiative, but these exceptions would deny protection to many whistleblowers,” said CLD’s Senior Legal Officer, Michael Karanicolas. “The exception for information that is defamatory is particularly troubling as it effectively means disclosures would only be protected if the whistleblower could defend their veracity in court.”

In addition to removing the list of exclusions, CLD’s recommendations include:
• Extending the scope of protection to prohibit civil or criminal liability, in addition to adverse employment consequences.
• Expanding the definition of what constitutes a public interest disclosure.
• Removing the requirement that whistleblowers must act in good faith.
• Making it an offence for anyone to disclose the identity of a whistleblower.
• Removing criminal prohibitions against false disclosures.

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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Myanmar: News Media Council is the Place for Media Complaints

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In Myanmar, the establishment of the News Media Council (NMC) as an independent co-regulatory complaints system was a major landmark on the road to democracy. However, a recent complaint by Eleven Media Group Chief Reporter, Mann Thu Shein, against Mizzima Editor-in-Chief and Managing Director, Soe Myint, and Mizzima Editor-in-Charge of Myanmar Edition, Myo Thant, seeks to avoid the NMC entirely and rely instead on a criminal defamation charge under section 34(d) of the Electronic Transactions Law (ETL).

“The article in question, which is about an important matter of public debate, does not contain defamatory content as that is understood under international law,” said Toby Mendel, Executive Director of CLD. “Any complaint against the article should have been lodged with the NMC, which has jurisdiction over press complaints and is clearly the more appropriate venue for this case.”

In Indonesia, defamation cases involving the media must first go through the Press Council, an approach Myanmar might wish to consider. In addition to the fact that it was not filed with the NMC, this case highlights a number of problems with the framework for freedom of expression in Myanmar, including the following:
• That the country still has and actively uses criminal defamation laws, despite the fact that these represent a breach of the right to freedom of expression as guaranteed under international law, among other things because they provide for harsh sanctions, including imprisonment, for defamation.
• That the country has special defamation provisions, with harsh sanctions, in the ETL.
• The failure of the administration of justice authorities to weed out cases like this, which should never go to court.

CLD calls on private actors to use restraint in taking cases involving statements on matters of public concern to court and to use the NMC complaints procedure instead, on police and prosecutors to refuse to lodge criminal cases which would unduly limit freedom of expression, and on the government to repeal all criminal defamation provisions and to replace them with appropriate civil defamation laws.

For further information, please contact:

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

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Canada: Serious Access to Information Reform Needed Now

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For years, calls from across Canada to improve the Access to Information Act fell on deaf ears. The government is finally moving forward with reforms but the opportunity to address the numerous shortcomings of the Act may be threatened by proposals to undertake a modest set of reforms now – as reflected in Canada’s draft Action Plan for the Open Government Partnership – with a full review coming only in 2018. In its Recommendations for improving the Access to Information Act, released today in response to a call for feedback from Canada’s Treasury Board Secretariat, the Centre for Law and Democracy is calling on the government to reconsider the idea of a two-stage reform process and, at a minimum, undertake a wide range of reforms in phase one.

You can read the full Recommendations here

The government has already taken some important steps to improve the access to information regime, but much more is needed,” said CLD’s Senior Legal Officer, Michael Karanicolas. “Canadians cannot continue to wait for the bold reforms that are needed to bring our right to information systems into the 21st century.”

CLD’s Recommendations for short-term reforms include:
• Granting order-making power to the Information Commissioner.
• Eliminating the fees simply for making requests.
• Extending the right to information to all persons.
• Replacing the categorical exclusions to and overbroad exceptions in the Act with a properly crafted regime of exceptions.
• Extending the Act to apply to all federal constitutional and statutory bodies, and any other body that performs a public function or receives public funding.
• Requiring public bodies to respond to requests as soon as possible, and to obtain permission from the Information Commissioner for deadlines beyond 60 days.

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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Stand Up for Digital Rights! Unveiling Recommendations for Responsible Tech

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Today, the Centre for Law and Democracy, in collaboration with the Arabic Network for Human Rights Information (ANHRI, Egypt), the Centre for Internet and Society (CIS, India), the Centro de Estudios en Libertad de Expresión y Acceso a la Información (CELE, Argentina), OpenNet Korea and researchers from the University of Ottawa and the University of Toronto, are unveiling a major new report on human rights and the responsibilities of private sector online intermediaries, along with recommendations for tech companies regarding policies and practices that safeguard rights.

The Report includes a discussion on Background Issues about the role of private online actors as key mediators of human rights and their resulting responsibility to protect and promote rights. It then explores six specific impact areas:
• Expanding Access, and how intermediaries should work to mitigate various digital divides.
• Net Neutrality, which intermediaries should respect and uphold.
• Moderation and Removal of Content, which should be done in a fair and transparent manner.
• Addressing Privacy Concerns Online, including through strong security practices such as encryption and data minimisation.
• Transparency and Informed Consent, including through proactive reporting on requests and actions affecting content and privacy, and through having clear, accurate and accessible terms of service.
• Responding to State Attacks on Freedom of Expression, including how best to push back against human rights abuse and when to divest entirely from a market.

The main launch is taking place today at the University of Ottawa, with satellite events taking place today in Buenos Aires and Bangalore, and with additional launch events planned for later this month and in July.

You can read the full Report, and Executive Summary and the recommendations at a new website dedicated to this issue: www.responsible-tech.org

Or, click here to read the Full Report; Executive Summary; Recommendations

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

Agustina Del Campo
Director
Centro de Estudios en Libertad de Expresión
y Acceso a la Información (CELE)
Universidad de Palermo
Buenos Aires, Argentina
Email: cele@palermo.edu
Tel: +54 11 5199-4500 ext. 1213/ 
www.palermo.edu/cele

K.S. Park 
Professor, Korea University Law School
Board Member, Open Net 
Email: kyungsinpark@korea.ac.kr
Tel: +82 8809 4057
www.opennetkorea.org
Twitter: @unbeatenpath

Ramy Rostom
Program Coordinator & Head of Translation Department
ANHRI – The Arabic Network for Human Rights Information
Email: ramyrostom@anhri.net
Tel: (+2) 23964058
www.anhri.net
Twitter: @anhri

Tamir Israel
Staff Lawyer
Canadian Internet Policy & Public Interest Clinic
University of Ottawa
Email: tisrael@cippic.ca
www.cippic.ca
Twitter: @tamir_i

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Myanmar: CLD/IMS Work with Local Partners to Host Events on Broadcasting and the Right to Information

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Over the last few days, the Centre for Law and Democracy, with support from International Media Support (IMS) and FOJO Media Institute, has hosted workshops with two of their partners – the Myanmar Media Lawyers’ Network (MMLN) and Pyi Gyi Khin (PGK) – to discuss current freedom of expression law reform issues in Myanmar, focusing on the regulation of broadcasting, public service broadcasting and the right to information (RTI).

Civil society has become increasingly engaged around key freedom of expression issues in Myanmar,” said Toby Mendel, Executive Director of CLD. “It is a privilege for us to be able to work with organisations like MMLN and PGK to promote democratic reform.”

The new Myanmar government has been reviewing the Broadcasting Law, which focuses on private broadcasters, and discussing the content of the By-Law which is needed to implement the Law. CLD participated in a dialogue on these issues hosted by the Ministry of Information in the capital, Nay Pyi Taw, last week. A workshop with MMLN focused on Regulation of Broadcasting – Private and Public. At the workshop, MMLN agreed to become more engaged in the Broadcast Law reform and implementation process.

A second workshop with PGK focused on the development of RTI legislation. The discussion started out by analysing the draft RTI law released by the Ministry of Information in February 2016 and the response of civil society to that draft. The second part of the workshop provided an opportunity to discuss key standards civil society would like to see in any RTI law.

An increasingly large range of civil society groups are engaging on the right to information,” said Nwezin Win, Executive Director of PGK. “Discussions like this support that engagement and allow us to forge common positions on key campaign issues.”

For further information, please contact:

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

Nwezin Win
Executive Director
Pyi Gyi Khin
nwezinwin@pgkmyanmar.org
+95 95031246
www.facebook.com/PyiGyiKhinMyanmar

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

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BC Should Reconsider Disclosure of Active Information Requests

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On 9 May, British Columbia’s Finance Minister, Mike de Jong, announced several changes to the province’s right to information (or access to information) system. Among these was a directive to publish the details of right to information requests – including the substance of the request and the identity of the requester – as soon as the requests were lodged. This policy needs to be reconsidered as it actually undermines access.

Although we support maximum openness, this policy is problematical,” said CLD’s Senior Legal Officer, Michael Karanicolas. “At the very least, proper consultations should be held with affected stakeholders before it is implemented.”

The policy raises two significant concerns. First, in practical terms, publishing a request as soon as it has been received can undermine use of the system. Certain important public interest categories of requesters, such as investigative journalists and watchdog NGOs, rely on the confidentiality of their requests, at least up to a certain point. Advertising the nature of their investigations would expose their stories, giving up what essentially amounts to business secrets – a recognised exception to the right to information – to competitors, disincentivising use of the system and ultimately undermining public access to information. Giving early warning of a line of enquiry may also give those targeted by the enquiry time to hide key information. These reasons underly policies in some jurisdictions, such as Israel, to impose a waiting period before completed information requests are published online.

A second concern is that publication of requesters’ names absent their consent may be a violation of their privacy. In the United Kingdom, for example, government standards dictate that the identity of requesters should only be disclosed “in exceptional circumstances”, while best practice (not followed in Canada) is to allow anonymous or pseudonymous requests. Publicity may also deter requests due to a fear of reprisals where the request involves sensitivities, such as where a person suspects they have been mistreated by officials.

The right to information is not absolute and can be limited where a compelling public or private interest such as privacy or commercial confidentiality outweighs its benefits. In this case, competing openness interests are also engaged since early disclosure in this manner is likely to it undermine use of the right to information in the first place.

CLD recommends that instead of this approach, public authorities publish disclosure logs showing requests and responses after a decision has been made on disclosure of the information. Requesters should normally be given a choice as to whether their identities are disclosed and whether they are afforded a period of a few days or a week of exclusive access to the material, although this might be overridden in exceptional circumstances.

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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CLD Submits Ideas for Open Government in Canada

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The Canadian government is currently preparing its third Action Plan on Open Government for the Open Government Partnership (OGP), which will run from 2016-2018. As part of this, the government has invited the public to submit ideas for the Plan, in line with OGP rules, which require governments to consult with the public when developing commitments on improving open government. Today, the Centre for Law and Democracy (CLD) released six recommendations for improving openness.

Click here to read CLD’s Submission

“CLD has been critical of the first two Action Plans for failing to address areas where reform is badly needed and for not paying sufficient attention to stakeholder inputs,” said CLD’s Senior Legal Officer, Michael Karanicolas. “Nonetheless, we are hopeful that this Action Plan will incorporate strong and ambitious commitments.”

The document notes shortcomings in Canada’s OGP participation up to this point, and urges the government to improve consultations both for developing its commitments and for implementation and monitoring of those commitments, once adopted. CLD’s leading suggestion remains reform of the Access to Information Act, something virtually every major stakeholder has called for since the OGP was launched. The present government has committed to improving the Act, but is proposing a delay until 2018, something CLD strongly objects to, given the urgency of reform needs.

CLD also recommends that the government:
• Do away with crown copyright and publish all materials produced by the
government.
• Create a central registry of the beneficial owners of companies.
• Publish all government contracts over $5,000.
• Publish the reasons underlying any competitive award above $10,000.

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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The Trans-Pacific Partnership Will Undermine Freedom of Expression

TPP ProtestMore than just a trade deal, the Trans-Pacific Partnership (TPP) is an attempt to establish standards not only for trade but for many related issue to govern 40% of the world’s GDP. The Centre for Law and Democracy has prepared a set of Comments highlighting significant concerns about how the TPP will impact on freedom of expression in response to an invitation for submissions by Canada’s House of Commons Standing Committee on International Trade.

CLD’s Comments Are Available Here

“While every treaty involves compromises, the TPP is seeking to extract a very high price from signatories in terms of freedom of expression,” said CLD’s Senior Legal Officer, Michael Karanicolas. “We urge Canada’s policy-makers to think very carefully about whether the harm to core Constitutional rights are worth it.”

CLD’s key concerns with the TPP include the following:
• It requires signatories to extend copyright terms, which will provide very few benefits to artists but represents a giveaway to large, profitable rights holders.
• Entrenches the problematical US-style “notice-and-takedown” scheme for copyright violations among signatories.
• Prohibits data localisation schemes, removing an important tool for combating State-led mass surveillance programmes.
• Undercuts multi-stakeholder models of Internet governance by imposing pre-set decisions regarding matters which should be decided by independent regulators.

Against these significant harms, the TPP’s positive statements on freedom of expression are weak and generally non-binding.

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 Mandates Launch 18th Joint Declaration

joint-statement1-300x117Today, on the occasion of World Press Freedom Day, the four specialised mandates tasked with promoting and protecting freedom of expression at the UN, OAS, OSCE and African Commission launched their 18th annual statement, the Joint Declaration on Freedom of Expression and Countering Violent Extremism. The Joint Declaration will be presented publicly tomorrow at the main UNESCO World Press Freedom Day in Helsinki. As in previous years, the Centre for Law and Democracy, along with ARTICLE 19, assisted the special mandates in preparing the Joint Declaration.

Click here to read the Joint Declaration
Click here for the Joint Declaration in French
Click here for the Joint Declaration in Arabic

“The Joint Declaration this year applies a number of established standards to the specific context of initiatives which have been adopted under the umbrella of countering violent extremism”, said Toby Mendel, Executive Director of CLD. “Unfortunately, too many States react to threats of violence by adopting unduly broad restrictions on freedom of expression.”

The Joint Declaration sets out a number of important standards, including the following:
• There should be no discrimination in the text or application of restrictions on freedom of expression.
• The concepts of “violent extremism” and “extremism” should not be used to restrict freedom of expression unless they are clearly and narrowly defined.
• States should not use their power to pressure or reward online intermediaries with a view to restricting lawful content.
• Politicians and other leadership figures in society should refrain from making statements which encourage or promote racism or intolerance.
• States should not adopt blanket prohibitions on encryption and anonymity.
• Measures that weaken digital security tools, such as backdoors and key escrows, are not legitimate because they are inherently disproportionate.

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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