Centre for Law and Democracy

10 March 2021.

The Centre for Law and Democracy (CLD) has provided a Submission on disinformation to the UN Special Rapporteur on Freedom of Expression. The Submission is in response to a call by the Special Rapporteur for inputs into her June 2021 report to the Human Rights Council, which will focus on disinformation and freedom of expression. CLD’s Submission reviews the main responses by both States and intermediaries to disinformation, analyses them from the perspective of freedom of expression and makes recommendations for future action.

“Disinformation is a growing problem around the world which, even as it represents an exercise of the right to freedom of expression, also seriously undermines that right,” said Toby Mendel, CLD’s Executive Director. “However, all too often responses to disinformation from both governments and intermediaries are broad-brush measures which fail to strike a careful balance between addressing the problem and minimising harm to human rights.”

Government responses to disinformation may consist of adopting broadly worded criminal prohibitions which lack appropriate intent requirements, allocating powers to regulate speech to political (as opposed to independent) actors and placing legal obligations or pressure on intermediaries to restrict content. Governments should focus far more on building trust by taking measures to prevent disinformation by officials, to enhance the flow of reliable information from official sources, to support a diverse, independent media sector and to put in place strong regimes for ensuring that citizens can access official information.

Intermediaries also need to respond in a far more transparent and nuanced way to disinformation. Their definitions of what speech breaches their policies need to be far more precise and be guided by human rights standards. Far greater transparency is needed regarding those definitions, how policies are applied and enforced, and how their automated systems prioritise and feature certain content. Where the approach taken by those automated systems tends to promote disinformation, directly or indirectly, intermediaries need to acknowledge this and address this issue directly, even if it may affect their business interests. Intermediaries also need to engage far more with users in the Global South to ensure that their policies take local conditions appropriately into account.

CLD’s Submission is available  UN Special Rapporteur for Freedom of Expression: Submission on an Annual Thematic Report on Disinformation.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

1 March 2021.

The Centre for Law and Democracy (CLD) has submitted an amicus curiae (friend of the court) brief to the Constitutional Court of Colombia, setting out international standards to support the claim that a civil defamation provision from a 1944 law is unconstitutional.

The provision, Article 55 of Law 29 of 1944, provides for broad civil indemnification for anyone who has been harmed by content distributed by the media unless the responsible media outlet proves that it acted without “culpability”. The CLD brief argues that this fails to respect international guarantees of freedom of expression, which require sufficient defences to be available for a claim of defamation.

“We welcome the opportunity to support this important challenge to the civil defamation law rules in Colombia,” said Toby Mendel, CLD’s Executive Director. “It is great to see the focus of defamation challenges in Latin America moving on from the earlier focus on criminal defamation to civil defamation, suggesting that cases may also be moving in that direction.”

The latter draws some support from a 9 February annual report by the local press freedom organisation FLIP (Fundación para la Libertad de Prensa or Foundation for Press Freedom). Titled Páginas para la libertad de expresión (Pages for Freedom of Expression), the report notes that there has been an increase in legal cases against the media, with officials preferring this to responding to the substance of media investigations.

CLD’s brief highlights three defences which should be available for any allegation of defamation, namely proof of truth, wide protection for opinions and the defence of reasonable publication, which is made out whenever the person who is responsible for a statement took reasonable care to ensure that it was accurate, even if in fact it contained errors. The brief also argues that third party intermediaries should not normally be responsible for content unless they have been ordered by an independent oversight body, such as a court, to take it down.

CLD’s amicus curiae brief is available here.

El informe de amicus curiae está disponible en español aquí.

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

23 February 2021.

CLD joins with Malaysian and international media organisations and freedom of expression groups to voice concern over the conviction of Malaysian news outlet Malaysiakini on contempt of court charges. This conviction could have serious impacts on the exercise of freedom of expression throughout the country.

The conviction is based on five comments left by third parties in the comments section of a news article on the decision to re-open Malaysia’s courts. It reflects a reliance on an archaic “scandalising the court” approach to contempt of court which does not adequately protect public criticism of the judiciary, as well as an inappropriate imposition of penalties on an intermediary for comments left by Internet users.

As expressed in the Joint Statement: “We call on the Malaysian government to end and refrain from the continued use of intimidating measures to threaten and punish the media and silence opinions.”

CLD joins ARTICLE 19, the Centre for Independent Journalism, Gerakan Media Merdeka, the International Federation of Journalists, the National Union of Journalists Peninsula Malaysia and Reporters without Borders in the statement, which is available in full here.

18 February 2021.

CLD is one of 45 organisations jointly calling on Cambodia to reconsider the Sub-Decree on the Establishment of the National Internet Gateway. We are concerned about the harmful impact of this Sub-Decree on the exercise of human rights in Cambodia, especially the rights to freedom of expression, access to information and privacy.

The full Joint Statement is available at: Joint Statement: Discard the Sub-Decree on the Establishment of the National Internet Gateway, set to detrimentally impact human rights online in Cambodia. 

1 February 2021.

The Centre for Law and Democracy (CLD) has provided a written Submission on Normative Frameworks for the Right to Information to the UN Office of the High Commissioner for Human Rights (OHCHR). The OHCHR is preparing a report on this issue to be presented to the UN Human Rights Council at its forty-seventh session in June 2021. The Council asked the OHCHR to prepare the report in its July 2020 resolution on freedom of expression, the first such resolution it has adopted in more than a decade.

“We very much welcome both the interest of the Council in this issue and the opportunity to contribute to the OHCHR’s report,” said Toby Mendel, CLD’s Executive Director. “We also hope that the Council will follow this up by taking concrete action to encourage States to improve national legal frameworks for this right and to push inter-governmental organisations to put in place strong policy guarantees for it, something they have so far mostly been reluctant to do.”

The CLD Submission relies heavily on the RTI Rating, which provides a good roadmap for a strong normative framework for the right to information, at least insofar as that framework should be reflected in law. The Submission goes further than the RTI Rating in some areas, such as the institutional framework for and a number of policy measures which can strengthen this right.

The Submission starts out by describing the RTI Rating, the standards it promotes and how it can be used to research country legal provisions on different issues. It then goes on to describe better practice normative frameworks in nine areas, namely guarantees for the right, institutional frameworks, proactive disclosure, scope of application of the right, requesting procedures, the regime of exceptions, appeals, sanctions and protections and promotional measures.

CLD’s Submission is available at OHCHR Submission on Normative Frameworks for 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

15 January 2021.

The Centre for Law and Democracy (CLD), an international human rights organisation based in Halifax, Nova Scotia, will host up to four interns for the summer of 2021. The position will involve a range of substantive legal work in areas such as freedom of expression, media law, digital rights and access to information.

CLD provides expert legal services on foundational rights for democracy for the support and promotion of these rights around the world. Select recent projects include:

• • Supporting Myanmar’s democratic transition, including by fostering the development of a robust and independent media sector and the drafting of new laws governing broadcasting, digital speech and access to information.
  • Supporting strategic litigation in various countries to establish stronger standards of respect for freedom of expression.
  • Developing innovative new tools to assess implementation of access to information laws as part of the Sustainable Development Goals.
  • Providing expert input into law reform processes in a range of countries, such as Jordan, Samoa, Vietnam and Nepal.
  • Campaigning against global threats to digital rights, such as mass surveillance, content restrictions, Internet shutdowns and efforts to undermine encryption and digital security.
  • Providing training and support to journalists, lawyers, judges and activists in countries around the world on media law and human rights issues.
  • Maintaining a comprehensive rating of the strength of access to information laws globally (www.rti-rating.org).

We ask interns to commit to at least three months full-time work during the months of May to August. We normally ask interns to be based in our office in Halifax, since we believe being with us in-person provides a richer all-round experience for interns. However, given the ongoing pandemic, we will select interns on a competitive basis and, where necessitated by travel restrictions or other pandemic-related restrictions, accommodate remote internships. These positions are unpaid and we encourage prospective interns to seek funding from their law schools or other sources.

CLD is known for providing its interns with a rich and varied substantive legal experience. As such, interns will have the opportunity to be directly involved in advancing the cause of human rights, normally in a range of countries, over the summer. For more information on CLD’s work, visit our website at www.law-democracy.org.

Those interested in applying should send a copy of their resume, cover letter and unofficial law school transcripts to laura@law-democracy.org by 8 February 2021. Final candidates may be asked to provide a writing sample.

Successful candidates will have a strong academic record, excellent research skills, the ability to multi-task, and a demonstrated commitment to international law and human rights. Languages and international experience are assets. Applicants should be current law students or recent graduates; on an exceptional basis we will consider candidates without a law background.

CLD is an equal opportunity employer and will not discriminate against any applicant on the basis of characteristics such as age, disability, gender, national origin, race, religion or sexual orientation.

11 December 2020.

The Centre for Law and Democracy (CLD) is today releasing a Human Rights Analysis of Biometric Digital ID Systems providing insight into the issue of developing a human rights compliant biometric digital ID system. A system of this sort is currently being considered in Myanmar. The Analysis reviews the human rights that may be negatively impacted by a biometric digital ID system and describes how to avoid such harms. It also reviews digital ID developments in Myanmar, as well as in a selection of countries where courts have limited implemented or planned biometric digital ID systems. 

“Biometric digital ID systems can have important advantages for both citizens and public authorities, but they also often negatively impact human rights, in particular privacy,” said Toby Mendel, Executive Director, CLD. “At the moment, Myanmar lacks key elements of a protective legal framework which should be in place before adopting such an ID system.”

In each of the three countries reviewed in this Analysis, India, Jamaica and Kenya, senior courts have either limited or halted entirely biometric digital ID systems, primarily on the basis of privacy but also other rights, such as social and economic rights which can be impacted through denial of access to services provided by both public and private actors.

Key recommendations in the Analysis include:

• • Any biometric digital ID system should be set out clearly in law; otherwise, it will breach the international law requirement that limits on privacy be done only by law.
  • A strong personal data protection regime should be put in place before adopting any biometric digital ID system.
  • Registration in a biometric digital ID system should be voluntary and should not be a prerequisite for receiving social services or benefits.
  • Any biometric digital ID system should be overseen by an independent body.
  • Any biometric digital ID system should not be linked to sensitive personal data such as citizenship, race, ethnicity or religion.

The Analysis is available here in English and Burmese.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

10 December 2020.

For United Nations Human Rights Day 2020, CLD’s Toby Mendel shared a blog post about media freedom in Myanmar at the website of partner International Media Support. The blog is available here and reproduced below.

Standing up for journalists’ rights – a status from Myanmar

Blog by: Toby Mendel

This blog is being published on 10 December 2020, United Nations Human Rights Day. The theme for this year is Recover Better – Stand Up for Human Rights. This is very relevant in Myanmar for a number of reasons. All countries can do a lot to improve on their human rights performance. But Myanmar, which emerged from a long period of one-party and military rule only recently, has a lot to do to ensure strong respect for human rights. Closely related to that, the country held its first recent democratic elections in 2015 followed by another election on 8 November 2020. That election returned Aung San Suu Kyi’s party, the National League for Democracy, to government with an even stronger win than in 2015. Human Rights Day can provide an opportunity for the government to reflect on how it will use its large majority to push forward with human rights reforms.

Since 2012, Myanmar has gone from having a very controlled media environment to one which is much freer. At the beginning of 2012, for example, non-government daily newspapers were banned and private newspapers had to submit their copy to the censor before they could publish it, a true prior censorship regime. There were also essentially only two broadcasters, both closely linked to the government. This has changed and a fairly vibrant and competitive print media environment operates alongside a broadcast sector which is slowly expanding, although it remains remarkably limited compared to other countries in terms of both the number of licensed broadcasters, both radio and television, and the vast dominance of the two crony broadcasters.

What Myanmar has achieved since media reforms started around 2012

In 2012, the main media-specific legislation in Myanmar was the 1962 Printers and Publishers Registration Law. This operated alongside laws of general application – like the Penal Code and the 1923 Official Secrets Act – other sector laws – like the Telecommunications Law 2003 – and a number of official policies and rules to create a highly repressive environment for the media. Content was regulated both criminally via a number of laws and through the system of prior censorship, in addition to through relationships such as the joint venture arrangements between the government broadcaster, Myanmar Radio and Television (MRTV), itself firmly under government control, and the two main private broadcasters.

Three new media laws have been adopted since 2012. The 2014 News Media Law creates an independent oversight body – the Myanmar Press Council – to regulate the news media and generally lightens the degree of control over the media, while still failing in important respects to come up to international standards. The Printing and Publishing Enterprises Law, adopted the same day, establishes a registration regime for the print media and repeals the 1962 law. Like the News Media Law, it is an important improvement over the previous regime while also not coming up to international standards. Finally, the 2015 Broadcasting Law is the most democratic of the three, establishing an independent Broadcast Council to regulate broadcasters and setting largely progressive standards for the sector. Unfortunately, the implementing regulations which are needed to put this law into practice were only adopted in October 2020, after a delay of more than five years, so no new broadcasters have actually been licensed yet under it. On the other hand, a Public Service Media Law, tabled before parliament in 2014, which would have transformed the government-controlled State media into more independent public service media, was withdrawn in 2015 and has never been reintroduced.

A number of policy measures have also been adopted. The prior censorship regime was abolished in August 2012, providing important breathing room for newspapers, while dailies were allowed in early 2013.

The theme at this year’s Human Rights Day is “Recover Better – Stand Up for Human Rights”: How can the media sector in Myanmar contribute to this?

In Myanmar, as in other countries, the media can and to some extent does play a number of important roles. First and foremost among these is informing the public about what is going on in the country and also regionally and internationally. Armed with this information, the public can engage in public decision-making and influence the direction of the recovery. By the same token, the public can participate in any recovery schemes, ensure they are following public health and other advice and take advantage of any rights or benefits to which they are entitled. The media can also, through reporting, expose corruption and wrongdoing, thereby hopefully curbing it. Finally, the media play an important accountability role, making sure that government lives up to its promises and implements programmes and policies in accordance with their proper design.

What obstacles do you see that the media working under to contribute to this recovery?

The media in Myanmar face a number of challenges, again often similar to those faced by media in other countries. The new dailies and the small number of new broadcasters that have been licensed all face major economic sustainability challenges. These have been seriously exacerbated by the COVID-19 pandemic as advertising has declined as other businesses have both been negatively impacted and moved their advertising even more decisively online, in line with the overall social migration to online.

Government secrecy is another challenge. The Official Secrets Act is massively overbroad in terms of secrecy, while a new National Records and Archives Law, adopted in December 2019, exacerbates problems of secrecy. At the same time, despite having released a draft Right to Information Law, giving individuals the right to access information held by government, in February 2016, the government has not moved forward concretely to adopt this law. The government also tends to favour the still significantly government-controlled State media in terms of the provision of information. These media have also been privileged during the pandemic shutdowns, since their journalists were the only ones deemed to be essential workers and allowed to move about to collect news.

Finally, a wide array of mostly criminal prohibitions on what may be disseminated through the media – found in a number of laws, including the Penal Code – place major constraints on media freedom. These include criminal defamation rules as well as a large number of prohibitions on the digital dissemination of information. The problem of these provisions is far from theoretical, with criminal cases against journalists under them being filed regularly.

Mis- and disinformation and hate speech continues to be widespread and serious issues in Myanmar, including by enabling human right violations: Does the legal framework need to be amended to address this and, if so, how?

Mis- and disinformation is a very serious problem in Myanmar and it has even been promoted in some cases by official actors to achieve political ends. As a first measure in this area, participation by official actors in spreading disinformation must stop. In addition, Myanmar has a number of vague legal prohibitions on spreading “false” information, such as section 68 of the Telecommunications Law which prohibits the dissemination of “inaccurate information”, which have been abused to silence critical journalists and social media users. These should be replaced by narrowly tailored provisions on spreading false information with specific intent, such as fraud, undermining elections or preventing people from obtaining heath care services.

The new government will be installed in April 2020: What are your hopes for action by the government in the areas of media freedom and freedom of expression?

As this blog makes clear, the new government has a lot to do. Some of the key priorities should be:

1. Adopting and implementing a strong right to information law. This should be accompanied by a thorough revision of the Official Secrets Act so as to bring it into line with international standards in this area.
2. Appointing an independent Broadcast Council and allocating it with sufficient resources to get on with its work of licensing and regulating broadcasters.
3. Reviewing and revising the numerous content restrictions in various pieces of Myanmar legislation. In the meantime, refraining from bringing cases against journalists under these rules.
4. Adopting legislation transforming the government media into independent public service media.

Biography: Toby Mendel is a leading global expert on media and freedom of expression law who has worked on these issues for some 25 years. He is currently the Executive Director of the Centre for Law and Democracy (CLD), an international human rights NGO based in Canada which focuses on foundational rights for democracy. He has worked on media freedom issues in Myanmar since CLD was founded in 2010 and has worked intensively in the country on media law reform since this started to be considered seriously in 2012. CLD is a long-time partner to IMS.

“IMS-Fojo in Myanmar is working on the country programme “Paving the way for public interest journalism in Myanmar” 2020-2022”.

27 November 2020.

Today, the Centre for Law and Democracy (CLD) provided a written Submission to the five-year review of the Canadian province of Newfoundland and Labrador’s Access to Information and Protection of Privacy Act, 2015. This is the first review since the law was substantially overhauled in 2015, after which it earned 111 out of a possible 150 on the Right to Information Rating (www.rti-rating.org) and became by far the strongest right to information law in Canada. Despite these strengths, CLD has identified a number of areas where improvements are needed to bring the law into line with global best practice.

“This review is an opportunity for Newfoundland and Labrador to make its good access to information law even better,” said Toby Mendel, CLD’s Executive Director. “Having already provided leadership within Canada on this important issue, we urge those responsible, starting with the Statutory Review Committee, which will recommend changes, to take the bold steps needed to prove that Canada can position itself among the best in the world on this key democratic and human rights issue.”

Some of the key recommendations in the CLD Submission were as follows:

• • The positive aspects of the law, namely the robust Information Commissioner and strong procedural rules, should be maintained and even further improved upon.
  • The weakest area of the law, the regime of exceptions, should be carefully reviewed and revised so that exceptions are narrowly defined to serve a legitimate interest, are subject to harm tests, a public interest override and sunset clauses, and prevail over any conflicting provisions in other laws.
  • The scope of public bodies covered by the law should be expanded to cover the judicial branch and any private body which undertakes a public function or operates with significant public funding.

CLD’s Submission is available 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

24 November 2020.

The Centre for Law and Democracy (CLD) is today releasing a Note highlighting a number of legal developments which have an impact on freedom of expression and which were proposed or adopted in 2020. These are part of CLD’s ongoing work in the country on media freedom issues, in collaboration with International Media Support (IMS) and FOJO Media Institute. The Note focuses first on legal developments which are linked to the COVID-19 pandemic and then on wider issues.

“Unfortunately, quite a number of legal instruments have been proposed or adopted this year which limit freedom of expression, although some have also been positive, such as the adoption of By-laws under the Broadcast Law” said Toby Mendel, Executive Director, CLD. “At the same time, there has still not been any concrete progress on the adoption of a right to information law.”

The key legal rules which are highlighted in the Note are as follows:

• • A proposed new Prevention and Control of Communicable Diseases Law which would prohibit the dissemination of news, even if it was accurate, about diseases if this could cause panic.
  • An Election Commission Notification which requires political parties to submit the script of proposed broadcast messages to the Commission for prior censorship.
  • The coming into force of the National Records and Archives Law, which broadly promotes secrecy.
  • A President’s Office directive on hate speech which requires national and region/state governments to take measures to prevent hate speech.
  • Limiting the application of the Law on Protecting the Privacy and Security of Citizens to government authorities rather than all citizens which should largely stop abuse of its defamation provisions but also undermine its already limited privacy protections.
  • In a very welcome development, By-laws have been adopted under the Broadcast Law, paving the way for the appointment of the National Broadcasting Council and, in due course, the licensing of broadcasters.

The Note is available here in English and Burmese.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

6 November 2020.

As the COVID-19 pandemic’s second-wave continues to sweep across much of the country, the federal government has maintained a very cavalier approach to meeting its legal obligations under Canada’s Access to Information Act. According to a 21 October report in the Winnipeg Free Press, less than half of federal access to information offices are currently operating at full capacity. This is because many departments have de-prioritised the processing of access to information requests, which has not been treated as “a critical service”, resulting in serious backlogs and no clear guidelines about when requests will be answered. 

The pandemic is not an excuse for the government to ignore access to information legislation. In fact, with other accountability systems operating below par, and decisions of the utmost importance to our health, our rights and our economy being taken regularly, government transparency is now more important than ever.

“In a pandemic, information can mean the difference between life and death,” said Brent Jolly, President of the Canadian Association of Journalists (CAJ). “Under no circumstances can the pandemic be an excuse for undermining democracy.”

Canada lagging behind

All of the many actors which have conducted reviews of the Canadian access system over the past twenty years – including journalists, civil society organisations, successive Information Commissioners and parliamentary committees – have concluded that Canada’s archaic Access to Information Act needs to be reformed. Plagued by overbroad exclusions and prohibitions, as well as discretionary and frequently abused grounds for delays, Canada ranks a dismal 50^th place out of the 128 countries around the world with access to information laws, according to the Global Right to Information Rating produced by the Centre for Law and Democracy (CLD). 

“The current government has made expansive promises to reform the Access to Information Act both as part of its election manifestos and to the Open Government Partnership (OGP), an international body where Canada sits on the Steering Committee,” said Toby Mendel, Executive Director of CLD. “But those bold and repeated promises have yet to be translated into anything beyond cosmetic reforms.”

A functioning access to information system is critical during a health emergency not only to ensure that health information reaches the public but, crucially, to ensure that the public is informed about how vast sums of public money are being spent and can assess for itself the legitimacy of the extensive restrictions which are being imposed. 

“Freedom of Information requests are a critical tool for journalists to do their job effectively and to hold governments, of all political stripes, to account,” said Jolly. “Without journalists doing the digging and unearthing details the government tries hard to bury, the public is, all too often, left in the dark and without a voice.” 

When questioned in the House of Commons about the pandemic-induced information bottleneck, Patty Hajdu, Canada’s federal Health Minister, responded: “Not one Canadian has asked me to put more resources into freedom-of-information officers.” This belittles the enormous efforts over the years by journalists and civil society actors, including CAJ and CLD, to reform the system, including by allocating more resources for processing requests. If the system were working properly, we would put in an access to information request to find out what Hajdu has in fact heard from the public. But, as things stand, we would be unlikely to receive any useful information, at least within a reasonable timeframe.

The government has promised, yet again, to review the Access to Information Act, although a review announced publicly in June 2020 has yet to be translated into any concrete action more than four months later. Despite the delays, CAJ and CLD sincerely hope that this review might, finally, bring Canada’s legal framework for access to information into line with more progressive approaches internationally.

CAJ made suggestions to reform the Act to the federal government in 2016 that were supported by more than 20 civil society groups. In response to government proposals to reform the Act, CLD prepared submissions and reviews of it in 2016, in 2017 and again in 2018.

In the coming weeks, the CAJ will be sending letters to cabinet ministers and shadow ministers to request meetings to re-emphasise the concrete actions the federal government could take to immediately improve the moribund state of Canada’s access to information system.

The CAJ is Canada’s largest national professional organization for journalists from all media, representing over 700 members across the country. The CAJ’s primary roles are to provide high-quality professional development for its members and public-interest advocacy.

CLD works 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.

For further information, please contact:

16 October 2020.

CLD has submitted initial input for the idea-generation phase of consultations hosted by the Government of Canada as part of preparations for Canada’s fifth Open Government Partnership (OGP) National Action Plan. The text of our submission is available below.

Centre for Law and Democracy
16 October 2020
Initial Input for the Idea-Generation Phase of Consultations

At this point in the consultation process, we are focusing on just two issues: 1) the need, finally, to conduct the full review of the Access to Information (ATI) Act that the Government of Canada has been promising both the OGP and its citizens for years; and 2) the nature of the consultative process, given that it will take place during the ongoing COVID-19 pandemic. We may broaden our focus in future rounds of the consultation.

Review of the ATI Act

Our main substantive priority for Canada’s fifth OGP National Action Plan is reform of the ATI Act. This is an area where Canada is significantly behind good practice globally, let alone represents better practice. The Act ranks an embarrassing 50^th place out of the 128 countries with national ATI laws globally (see www.rti-rating.org), even taking into account the amendments enacted in 2019. Although Canada was once a leader in this area, international standards on ATI have developed and clarified significantly since the Act was first adopted in 1983, and Canada has simply not kept up.

The 2019 amendments did include a very welcome change, namely giving the Information Commissioner order-making power, something CLD has long called for. However, otherwise, the amendments were minor in nature, earning Canada only an additional three out of the 150 points on the RTI Rating, and therefore represent a repeated failure of the government to live up to their promises. These were first articulated by the Liberal Party in their 2015 election platform, which promised to substantially expand the coverage of the Act, then set out more expansively in Canada’s third, 2016-2018 OGP Action Plan, which promised “a full review of the Act, no later than 2018” and then in Canada’s fourth, 2018-2020 OGP Action Plan, which promised, once again, to “undertake a full review of the Access to Information Act”. Although a review was announced in June 2020, no substantive details or timeline for public consultations have so far been announced and it is clear at this point that Canada will not fulfil this commitment.

Very major problems with the ATI Act remain, of which the three most serious are:

1. The coverage of the Act: It still does not apply to the Prime Minister and Cabinet, the judiciary, the legislature and a number of other bodies which are covered in better practice legislation.
2. Time limits: Issues here include the absence of any requirement to respond to requests as soon as possible and, most seriously, the power of public authorities to extend time limits essentially indefinitely, which is roundly and almost routinely abused in practice.
3. The regime of exceptions (exemptions and exclusions): Issues here include a number of exceptions which are overbroad from the beginning, a number of other exception which lack a harm test and the lack of a general public interest override for many exceptions.

All of these three issues were recognised as areas needing review in the 2018-2020 Action Plan.

It is now time for Canada to recommit to comprehensive reform of the ATI Act and, this time, actually to deliver on that commitment. Indeed, we believe this should be a key priority in the fifth National Action Plan. We also call on the government to make more concrete and ambitious commitments this time. A more detailed timeline for the process should be given and this should not just involve a review of the law but a specific commitment to table legal reforms in Parliament well before the end of the period of the Action Plan. Additionally, where these can help improve implementation of the Act, for example in the area of timeliness, a commitment should be made to introduce rapidly specific policy reforms while waiting for the law reform process to reach fruition. We will make more detailed recommendations on this in our next submission to this consultation process.

Consultations

We assume that consultations around the National Action Plan will need to be exclusively digital in nature given the ongoing COVID-19 pandemic. Whereas in previous rounds regional consultations were held in person, we recommend that a number of dedicated thematic webinars, along with a more open-ended session to cover residual issues, should be held this time. The selection of thematic focus areas should be based on the issues which non-governmental stakeholders have consistently raised in past consultations, as well as new issues raised in this current initial consultation which attract a higher degree of interest.

We strongly recommend that one thematic session should focus specifically on the ATI Act, to include both law reform and improving implementation. Canada’s repeated promises in this area and its failure to fulfil them demand this. This session should not include open data issues, which have characteristically occupied pride of place in Canada’s OGP Action Plans. Although open data is technically part of ATI, since it represents a form of proactive disclosure, it raises very distinct issues and bundling this with a discussion about the ATI Act would at least distract from, and potentially overwhelm, the needed focus on that Act.

15 October 2020.

CLD joins with community leaders, over 50 other Canadian civil society groups and over 50 parliamentarians in calling for Canadian government action to sanction Chinese and Hong Kong officials and protect Hong Kongers at risk of political persecution. The statement is as follows:

Joint statement calling for sanctioning of Chinese and Hong Kong officials and protection for Hong Kongers at risk of political persecution

We, the undersigned, call upon the Government of Canada to take action in light of the mass arrests and assault on civil rights following the unilateral imposition of the new National Security Law in Hong Kong. Many in Hong Kong fear they will face the same fate as the student protestors in Tiananmen Square, defenders’ lawyers, and millions of interned Uyghurs, Tibetans, and faith groups whose rights of free expression and worship are denied.

We urge the Government of Canada to offer a “Safe Harbour Program” with an expedited process to grant protection and permanent residency status to HongKongers at risk of political persecution under the National Security Law, including international students and expatriate workers who have been involved in protest actions in Canada.

Furthermore, Canada must invoke the Sergei Magnitsky Law to sanction Chinese and Hong Kong officials who instituted the National Security Law, as well as other acts violating human rights; and to ban them and their immediate family members from Canada and freeze their Canadian assets.

Canada needs to work closely with international allies with shared values to institute a strong policy toward China. It is time for Canada to take meaningful action to show leadership on the world stage.

Signatories:

Civil society organizations
Action Free Hong Kong Montreal
Canada-Hong Kong Link
Canada Tibet Committee
Canadian Centre for Victims of Torture
Canadian Friends of Hong Kong
Canadian Journalists for Free Expression
Centre for Law and Democracy
Democracy & Human Rights for China
Democratic Party of China, Canada Committee
East Turkistan Association of Canada
FAPA Canada
Federation for a Democratic China
Friends of Canada India Organization
Friends of Hong Kong Calgary
Global Pinoy Diaspora Canada
Gurukul Cultural Society
Halifax Hong Kong Link
International Support for Uyghurs
McMaster Stands with HK
Movement for Democracy in China (Calgary)
Mustard Seeds Hong Kong Concern Group
One Free World International
Ontario Universities Hong Kong Awareness Group
Ottawa Post-Secondary Institutions’ Hong Kong Awareness Group
Ottawan Stand With Hong Kong
PEN Canada
Raoul Wallenberg Centre for Human Rights
Regional Tibetan Youth Congress Toronto
Saskatchewan Stands with Hong Kong
SFU HK Awareness & Action Group
Southern Mongolian Human Rights Information Center
Students for a Free Tibet
Taiwanese Canadian Association of Toronto
Taiwanese Human Rights Association of Canada
Toronto Association for Democracy in China
Toronto Falun Gong Human Rights Group
Torontonian HongKongers Action Group
University of Calgary Hong Kong Concern
University of Manitoba Hong Kong Concern
University of Toronto Hong Kong Extradition Law Awareness Group
Uyghur Refugee Relief Fund
Uyghur Rights Advocacy Project
Vancouver Hong Kong Political Activists
Vancouverites Concerned About Hong Kong
Vancouverites Stand with Righteousness
Vancouver Society in Support of Democratic Movement
Vancouver Society of Freedom
Vancouver Uyghur Association
Victoria BC Hong Konger
Viet Tan
Waterloo Lion Rock Spirit
Winnipeg Hong Kong Concern
World Press Freedom Canada
World United Formosans for Independence Canada Chapter
York University Hong Kong Politics Awareness Group

Community Leaders
Charles Burton, Senior Fellow, Macdonald-Laurier Institute
Marcus Kolga, President of the Central and Eastern European Council in Canada
Amita Kuttner, Green Party activist
Joe Tay, Hong Kong actor and singer in exile
Rukiye Turdush, independent researcher and human rights activist

Parliamentarians
Ziad Aboultaif, Member of Parliament
Scott Aitchison, Member of Parliament
Hon. Denise Batters Q.C., Senator
Kelly Block, Member of Parliament
Alexandre Boulerice, Member of Parliament
John Brassard, Member of Parliament
Colin Carrie, Member of Parliament
Kenny Chiu, Member of Parliament
Laurel Collins, Member of Parliament
Hon. Consiglio DiNino, former Senator
Kerry Diotte, Member of Parliament
Scott Duvall, Member of Parliament
Dave Epp, Member of Parliament
Nathaniel Erskine-Smith, Member of Parliament
Hon. Kerry-Lynne D. Findlay, Member of Parliament
Hon. Linda Frum, Senator
Hon. Dr. Hedy Fry, Member of Parliament
Leah Gazan, Member of Parliament
Randall Garrison, Member of Parliament
Hon. Stephen Greene, Senator
Jasraj Singh Hallan, Member of Parliament
Jack Harris, Member of Parliament
Hon. Leo Housakos, Senator
Carol Hughes, Member of Parliament
Hon. Peter Kent, Member of Parliament
Tom Kmiec, Member of Parliament
Michael Kram, Member of Parliament
Damien Kurek, Member of Parliament
Jenny Kwan, Member of Parliament
Hon. Frances Lankin, Senator
Philip Lawrence, Member of Parliament
Hon. Michael MacDonald, Senator
Paul Manly, Member of Parliament
Hon. Elizabeth Marshall, Senator
Lindsay Mathyssen, Member of Parliament
Elizabeth May, Member of Parliament
Kelly McCauley, Member of Parliament
Phil McColeman, Member of Parliament
Hon. John McKay, Member of Parliament
Hon. Marilou McPhedran, Senator
Heather McPherson, Member of Parliament
Hon. Percy Mockler, Senator
Hon. Jim Munson, Senator
Hon. Thanh Hai Ngo, Senator
Hon. Dennis Patterson, Senator
Jeremy Patzer, Member of Parliament
Hon. Donald Plett, Senator
Yasmin Ratansi, Member of Parliament
Brad Redekopp, Member of Parliament
Hon. David Richards, Senator
Hon. Judy Sgro, Member of Parliament
Nelly Shin, Member of Parliament
Derek Sloan, Member of Parliament
Warren Steinley, Member of Parliament
David Sweet, Member of Parliament
Corey Tochor, Member of Parliament
Cathay Wagantall, Member of Parliament
Kevin Waugh, Member of Parliament

28 September 2020.

On this International Right to Know Day, the Centre for Law and Democracy joins with other civil society organisations from around the world in calling on governments to avoid using the COVID-19 crisis as a pretext for limiting the right to information. Instead, we are urging governments at least to restore and preferably to improve legal and practical measures for ensuring the right to information.

“The public’s ability to access information held by governments is especially important during times of crisis, such as a pandemic, when other accountability mechanisms are not functioning at full capacity,” said Toby Mendel, Executive Director, CLD. “The right to information is critical for protecting public health, avoiding corruption in the use of crisis-response funds and ensuring that economic policy measures are properly designed.”

The Joint Statement is available at: https://www.transparency.org/en/press/the-right-to-know-is-crucial-in-a-crisis

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

28 September 2020.

28 September, International Right to Know Day, is a day when people around the world celebrate the importance of the right to access information held by public authorities (the right to information).

This year, International Right to Know Day also represents the 10^th anniversary of the launch of the RTI Rating, which assesses the strength of right to information laws globally. In honour of this anniversary, CLD has published a Trends Snapshot highlighting the trends in RTI legislation globally, as shown by the RTI Rating data. We have also, as usual, updated country scores for the Rating. No new countries adopted RTI laws this year but a number of countries, including China and Zimbabwe, adopted new laws, while others made amendments to their legal frameworks.

“This year, the COVID-19 pandemic has highlighted the importance of the right to information both to ensure that people have the information they need to protect themselves and as a key accountability system,” said Toby Mendel, Executive Director, CLD. “Governments should be treating this right as an essential service – part of the response to the crisis – rather than taking advantage of the crisis to limit it.”

CLD is also collaborating with Canadian information commissioners to host two webinars at the conference on Celebrating the Right to Know Across Canada. The first is on The Need for Access to Information Law Reform in Canada, given that a process of reforming the federal Access to Information Law is about to be launched. The other focuses on COVID-19’s Impact on Access to Information, looking at international better practices around protecting access to information during a crisis and the need for Canada to do more to ensure the realisation of this right.

Toby Mendel and Laura Notess, Legal Officer, CLD, delivered a joint keynote speech at the Scottish Public Information Forum’s celebration of International Right to Know Day on 24 September. The focus here, once again, was on COVID-19 and RTI, looking at the COVID-19 Tracker that CLD developed in April and CLD’s report on Maintaining the Right to Information During Health Emergencies.

Finally, Toby Mendel will also participate as a moderator and speaker in the series of panels on RTI hosted by UNESCO this week.

The Trends Snapshot is available at: RTI Rating Trends Snapshot.

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

27 September 2020.

UNESCO is hosting a series of events to celebrate the United Nations’ International Day for Universal Access to Information or International Right to Know Day, 28 September. Toby Mendel, CLD Executive Director, will moderate the High-Level Panel, taking place from 1400-1530 Paris time that day. The panel, titled Access to Information – Saving lives, Building Trust, Bringing Hope!, will host UNESCO’s Director-General, Twitter’s Vice-President Public Policy EMEA and WHO’s Director of Global Infectious Hazard Preparedness, among others, as speakers.

UNESCO is also hosting a number of other panels. Mendel will speak at a panel at 1630 Paris time on 29 September titled Implementation of Laws, on access to information during times of crisis. Other panels will focus on Access to Information and Openness (1600 on 28 September), Disinformation and Access to Information (1100 on 29 September), Measuring SDG 16.10.2 (1500 on 29 September), Infodemic and Youth (1500 on 30 September) and Open Access (1630 on 30 September).

Those interesting in registering for these events can do so at: https://en.unesco.org/commemorations/accesstoinformationday.

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

3 September 2020.

The Centre for Law and Democracy (CLD) is seeking a Legal Officer to begin working with us as soon as possible. We are looking for a successful, highly motivated person who will work from Halifax, Canada. The successful applicant will be rewarded with exciting legal work in countries all over the world, high-level representational opportunities and the chance to participate in a wide range of different types of activities.

The Legal Officer will have a range of responsibilities related to safeguarding human rights, with a focus on freedom of expression, the right to information, freedoms of association and assembly and the right to participate, as part of a small, dynamic human rights organisation with a unique mandate. The position combines legal analysis and top-level standard setting research with on-the-ground campaigning across the Global South, in collaboration with a diverse range of activists, partners and subject matter experts. Direct advocacy is an important part of CLD’s work, and the position includes opportunities to engage with policy-makers at the highest level, as well as to dialogue with the world’s foremost experts on human rights. The position includes travel opportunities, as well as representing CLD at various international conferences and meetings (although this is currently subject to COVID-19 restrictions).

We expect the Legal Officer to be based out of our office in Halifax, Canada, subject to arrangements being made that are consistent with the current rules relating to COVID-19.

About the Organisation

CLD is an international human rights organisation based in Halifax, Canada, which provides expert legal services globally on foundational rights for democracy, with a particular emphasis on freedom of expression, freedom of association, the right to information, digital rights and the right to participate. Our major ongoing projects include:

• • Supporting Myanmar’s democratic transition, including by fostering the development of a robust and independent media sector and drafting new laws governing broadcasting, digital speech and the press.
  • Providing training and support to journalists, lawyers, judges and activists in different countries on media law and human rights issues.
  • Providing expert input into legal development and reform processes in a range of countries, such as Vietnam, Samoa and Jordan.
  • Supporting strategic litigation on the human rights issues we focus on.
  • Maintaining a global ranking of right to information laws (RTI-Rating.org) and a methodology for assessing the quality of implementation of right to information laws (RTI-Evaluation.org).
  • Campaigning against global threats to digital rights, such as mass surveillance, Internet shutdowns and efforts to undermine encryption and digital security.

Essential Qualifications

• • A law degree (LL.B or J.D. or equivalent).
  • Knowledge of human rights law, particularly freedom of expression and the right to information, and awareness of mechanisms for the protection of human rights.
  • Excellent written and spoken fluency in English, including an ability to draft complex legal and policy documents for a high-level audience, as well as clear and concise position statements for general public consumption.
  • Strong analytical and research skills, including the ability to assess legislation and policies against international human rights standards.
  • Strong public speaking skills, including being comfortable addressing large audiences.
  • The ability to travel internationally.
  • A keen interest in and openness to other cultures, and an ability to collaborate with people from a range of cultural, religious, social and educational backgrounds.
  • Ability to work effectively, often under pressure, to tight and demanding deadlines.
  • Strong interpersonal skills and comfort managing small teams.

Preferred Qualifications

• • A degree in another field relevant to our area or work (journalism, digital technology, international development studies, etc.)
  • Prior experience working or volunteering in the human rights field, including on freedom of expression or the right to information
  • An understanding of legal and technical issues relating to digital speech, such as net neutrality, Internet shutdowns, etc.
  • Some experience having lived or worked in the Global South
  • Some basic accounting skills, such as how to develop and administer budgets
  • Some experience developing grant and funding proposals, or experience establishing and maintaining relations with international donors
  • Knowledge of additional languages, in particular Spanish or Arabic

Those interested in applying should send a copy of their resume, cover letter and latest law school transcripts (unofficial are acceptable) to laura@law-democracy.org. Applications will be accepted until the position is filled but we will start reviewing applications on 28 September 2020 and will prioritise applications received by that date.

The salary range for this position will be CAD 60,000-70,000 depending on experience. The position is a full-time, one-year contract subject to renewal. The language of work is English. For a description of job duties, see Legal Officer Job Description.

The Centre for Law and Democracy is committed to diversity and is an equal opportunity employer. We value and encourage all applicants without regard to race, colour, religion, gender, sex, national origin, age, disability, marital status, sexual orientation, gender identity or expression, or any other legally protected ground. This commitment applies to all aspects of employment, including hiring, transfer, promotion, compensation, eligibility for benefits and termination.

Centre for Law and Democracy
39 Chartwell Lane
Halifax, N.S., B3M 3S7
Canada

19 August 2020.

The Centre for Law and Democracy has joined a number of other organisations in issuing a Joint Statement condemning the adoption, on 30 June 2020, of the new national security law by the top legislative body in China and the subsequent active use of the law by Hong Kong authorities. These actions have seriously eroded respect for both democracy and freedom of expression in Hong Kong.

“The new law contains a number of vague restrictions on content that can be used to curtail perfectly legitimate forms of expression,” said Toby Mendel, Executive Director, CLD.  “This was seen in the charges laid under the law against Jimmy Lai, founder of the popular journal, Apple Daily, as well as those against many others.”

The Joint Statement calls on the governments of China and Hong Kong to respect democracy and human rights in Hong Kong, noting that a failure to do so will undermine not only individual freedoms but also the stability and economic success of Hong Kong.

The Joint Statement is available at: Statement on Hong Kong.

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

11 August 2020.

Today, CLD is releasing its fifth and final regional report in its series on the law and policy environment for civic space globally, covering seventeen countries in Sub-Saharan Africa. It highlights legal restrictions which pose more serious risks to the ability of civil society to operate freely in each country, with the goal of providing a guide for where reform is needed.

This series represents the public launch of law and policy reviews commissioned by Transparency International last year covering five regions: Asia Pacific, Europe and Central Asia, Latin America, Middle East and North Africa, and Sub-Saharan Africa. The earlier reports in the series are available online: Asia Pacific, Europe and Central Asia, Latin America and Middle East and North Africa.

The report identifies the following general trends across the region:

• • Regulatory regimes for non-governmental organisations are typically overly complex or unclear, and many include burdensome reporting requirements or grant broad discretion to authorities to refuse to register or dissolve organisations.
  • Despite a welcome trend of decriminalising defamation, criminal reputation offences remain in many countries, along with other problematical content restrictions (such as on sharing false information).
  • Cyber laws introduce new restrictions on speech, including some instances of effectively re-criminalising online defamation. Government authorities have improperly broad authority to block the Internet or specific websites.
  • Media regulators are not independent, despite having significant regulatory powers.
  • Some countries require prior authorisation before organisers may hold demonstrations and some even require notice of any public meeting.
  • Limited oversight of security institutions, combined with expansive definitions of seditious or terrorist acts, pose a risk to peaceful civil society activities.
  • Whistleblower protection laws in the region are rare, while five countries also lack right to information laws.

The Sub-Saharan Africa regional report is available at: Sub-Saharan Africa Report.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

4 August 2020.

CLD has released its regional report on the legal environment for civil society in the Middle East and North Africa. The report, the fourth in our global series, highlights laws and policies in the region which prevent civil society from organising, meeting, fundraising, advocating, researching, expressing their opinions and otherwise operating. The report highlights more problematical laws, as a means of encouraging reform and openness in the region.

This series represents the public launch of law and policy reviews commissioned by Transparency International last year covering five regions: Asia Pacific, Europe and Central Asia, Latin America, Middle East and North Africa, and Sub-Saharan Africa. Three prior reports have already been launched, including Asia Pacific (available here), Europe and Central Asia (available here) and Latin America (available here).

The report identifies the following general trends across the region:

• • States in the region, particularly in the Gulf, have extensive powers over civil society organisations, including the ability to deny them recognition, dissolve them, require changes to their internal structures or mandate government attendance at meetings.
  • Both press laws and criminal codes contain numerous content restrictions which are vague and do not accord with international human rights standards.
  • Media regulators are not independent and journalists, newspapers and news websites are typically required to obtain a licence from the State to operate.
  • National security and anti-terrorism laws contain provisions which are often abused against peaceful civil society actors.
  • Some countries restrict public meetings as well as demonstrations while, more generally, authorities have significant discretion to ban assemblies.
  • Most countries do not have right to information laws and, instead, have broad secrecy rules.

The Middle East and North Africa regional report is available at: Middle East and North Africa Regional Report.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy