Internet remembers everything
Share Defense: Analysis of Internet freedoms during the emergency situation / Republic of Serbia / May 2014
A true indicator of maturity and democracy of a country and its society is the vulnerability to public scrutiny. A government which cares about democratic values and the rule of law should not allow public debate on matters of public interest to die down, even in emergency situations such as the natural disaster that hit Serbia during the previous weeks. The state can not only directly infringe the right to freedom to disseminate and receive information, it also needs to create conditions that no one, whether a public or a private actor, threatens that freedom. Unfortunately, the state has not passed this “test of democracy”, since the representatives of the state authorities reacted negatively and too strongly to any criticism. Then the private actors, such as cable operators, showed complete absence of any awareness of the need for the free flow of information, misusing the role of “information carriers” and denying their users access to content. In the end, criticism on social media, blogs and other alternative channels of communication suffered the biggest blow.
Emergency situation vs. state of emergency
In the general confusion caused by the natural disaster, the difference between the state of emergency and emergency situation was subtly lost. During the emergency situation, this distinction deliberately or accidentally was not realized by some journalists of traditional media and neither by the representatives of state and local governments, sending a message that the state of emergency was declared in Serbia. As it is a legal and not a colloquial term, and how the “confusion” may have a very large impact on the enjoyment of human rights, it is necessary to explain the difference.
The state of emergency is legally regulated by the Constitution of the Republic of Serbia, stating that it is declared by the National Assembly when the there is a “public danger threatening the existence of the state or its citizens” (Article 200 of the Constitution). The National Assembly is also authorized to proclaim measures for exceptions regarding human and minority rights for the duration of the state of war and emergency (Article 105, paragraph 2, point 3) of the Constitution). Restrictions measures may also apply to freedom of the press (Article 50) and the right to information (Article 51).
The Constitution prescribes that for the restriction of the free exercise of human rights certain conditions must be met – prescription by law, focus on the protection of the fundamental values of society, with the existence of proportionality of the measure and objective (Article 20, paragraph 1). The Law on Emergency Situations does not prescribe measures restricting human rights, including freedom of information, in any of its provisions. The said law does not provide a legal basis, but it raises the mentioned right to a higher level in accordance with the principle of transparency, i.e. Article 5, point v) of the Law on Emergency Situations:
“Information on risks and actions of state bodies, bodies of autonomous provinces, local governments and other entities of protection and rescue is public.
The state authorities, the autonomous province authorities and local government authorities must ensure that residents, in the area which may be affected by a natural or other disaster, be informed of the dangers.”
The inertia of traditional media and the lack of notification by the competent services in the days of the emergency situation created the need for citizens to communicate using alternative means. Thanks to the Internet, citizens had the opportunity to publish content in real time and also inform the public and also provide assistance. Citizens were able to obtain necessary, updated and timely information often only through social networks, ad-hoc platforms, Google Docs and other channels of communication on the Internet. Unfortunately, some of these forms of communication were soon disabled.
Error 404 – Page not found
Why is content being removed from the Internet and who is bothered by the expression of critical opinion? Since SHARE Defense noticed a tendency that content, but also entire sites “disappear” or become unavailable, this time it systematically monitored and collected texts that could be recognized as disputed, immediately after their publication.
Censorship is prohibited by the Constitution, while citizens are guaranteed the right to freedom of opinion and expression, Ombudsman Saša Janković reminded. He also emphasized everyone’s right to be a “criticizer” and have an opinion, no matter what that opinion is, as long as it doesn’t call upon the violent overturn of the Constitutional order or territorial integrity of Serbia:
“The Ombudsman expresses concern over the increasing withdrawal of certain information and critique from publicly available means of information and information space.”
“And regarding the “disappearance” of posts or “falling down” of portals, at least two conclusions are more obviously imposed. First, if they are a “result” of any actions of the authorities or the representatives of authorities whatsoever, the activities are absolutely illegal. And second, if these are activities of some “ardent” editors, and especially “unidentified” hackers, they cannot be judged as anything but harmful, dangerous and unacceptable”, the Commissioner for Information of Public Importance and Personal Data Protection Rodoljub Šabić wrote on his blog.
“Selective” informing of citizens
The fact that information which is to be published in the traditional media is carefully selected was confirmed by the appearance of journalist Daliborka Delibašić on TV “B92”. She said that she was told to “watch what she will say to protect herself and her family”.
Also, radio-amateurs “vanished” from the air at one point, with their frequencies being given to the Mountain Rescue Service of Serbia, but they later returned and were accepted into the crisis headquarters.
On the portal “Teleprompter”, an article “Citizens outraged, attacking and swearing at Ministers!”, which also contained a video of the alleged attack on one of the Ministers of the Government of Serbia, was not available. Also, “Teleprompter” published a press release, which states that they had received threats because of the article “APPEAL: Vučić should stop being pathetic and feeling sorry himself” and other articles and that their website had been under attack. Although “Bluehost”, their hosting provider, removed the site because their database was allegedly too large, this reason proved to be without any grounds after an analysis was conducted. Although they changed the provider, the site quickly became suspended again, which happened repeatedly in spite of solving various problems they faced. Finally, teleprompter.rs was hosted on cloud servers and became available again.
After publishing the article “State, we won’t hold you back any more” by Nenad Milosavljević, website drugastrana.net could not be opened. Milosavljević wrote on Twitter that the site was “under a great attack” and that they had to take it down not to endanger other sites on the server.
After efforts to censor all mentioned articles, they were massively disseminated through blogs and social media, which increased the number or readers, so censorship failed its purpose – to cover up information.
Increasing pressure on the digital environment only led to a louder and more organized response of the Internet community. Proclamation “In the face of censorship” calls for “end of censorship and the beginning of responsibility”. This call received significant support from sites and individuals in a short time. Shortly after the publication of information about the proclamation, portal “24 sata” had it removed, while the text on the website of “Blic” failed to mention the part relating to the criticism of that media outlet.
Causing panic and intimidation
After the attempted censorship of online content, there were information that certain citizens were brought in for questioning by the police for “spreading panic on social networks” and SHARE Defense has information that some of them were detained. They have commented or disseminated information they received on their personal profiles or blogs, as well as in the comments on the articles that have been published on the portals.
This procedure confirmed that the censorship attempt was futile and that the government has nothing to use to defend itself but threaten with criminal prosecution. In fact, all those who were detained may face a prison sentence of 6 months to 5 years, as prescribed by Article 343 of the Criminal Code. This article refers to spreading of false information that can cause panic, disrupt public order or cause interference with the implementation of decisions and actions of state bodies (the basic form of the criminal act), and when this is done through the media, other similar means or at public gathering, it is a qualified form of the criminal act (paragraph 2).
Blogs, Facebook profiles, Twitter accounts and the like cannot be qualified as media outlets, because in their case there is no editorial responsibility, nor any other requirements stipulated by the Law on Public Information. Also, it is difficult to define the expression on channels of social media as speech at a public gathering.
The Commissioner for Information of Public Importance and Personal Data Protection Rodoljub Šabić is of the same opinion; on his blog he wrote that even if it was about “the possible causing of panic”, consequences also had to occur – i.e. the panic to actually happen, but even then it would “be questionable for activities on social networks and personal blogs” to be subsumed under paragraph 2 of Article 343 of the Criminal Code.
Arresting individuals for their blogs, comments and other forms of writing was also deemed unacceptable by the OSCE Representative on the Freedom of the Media Dunja Mijatović, and she stressed that it adversely affects the general state of press freedom and that it can lead to self-censorship.
Freedom of expression and European standards
In the most recent European Union Human Right Guidelines on Freedom of Expression Online and Offline of 12 May 2014, it is stated that Internet and digital technology have expanded the scope of communication, and therefore the freedom of expression as a right, and in this regard confirmed that the right of expression in the online sphere should be treated the same as in the offline world. In the European Commission’s progress report on Serbia published in October 2013, it is stated that threats and violence against journalists continue to be a significant factor affecting the existence of self-censorship, which must be addressed in the light of the negotiations on Serbia joining the EU.
In addition, the Guidelines of the Committee of Ministers of the Council of Europe on protecting freedom of expression and information in times of crisis point of the fact that in crisis situations, Member States should not be allowed to restrict access to information to a greater extent than the limits allowed by Article 10 of the European Convention on Human Rights and interpreted in the European Court of Human Rights case law. It is also stated that Member States should always bear in mind that free access to information can help in solving the crisis and identifying potential abuse.
Described cases of censorship represent a very large threat to freedom of expression, primarily because they endanger the possibility of critical viewing of social processes and activities of public authorities because of the threat of sanctions for expressed views, opinions, ideas, or simply disseminating information. This widely opens the door for the “chilling effect” and self-censorship. What happened during the emergency situation has largely demonstrated that the “chilling effect” is largely present in the traditional media, and the journalists themselves are beginning to recognize this.
In addition, an unusually effective and vigorous response of the judicial bodies and the police, i.e. bringing in social media users for information that is shared this way is an absolutely inappropriate, unjustified and highly questionable measure. It can be argued with a high degree of certainty that its goal was not to protect society from danger (which is one of the goals of criminal prosecution), but to intimidate Internet users and prevent them from freely imparting and receiving information.
Such a violation of freedom of expression has a negative effect on the rule of law and democratic values. Every government must nevertheless be aware that on the Web different rules apply, and that censorship habits of the 20th century simply cannot be effective when it comes to online communication as “Internet remembers everything”.