Freedom of Information

Access to information is a precondition for a healthy democracy and freedom of expression. The public’s right to information is a foundation for democratic discourse, a well functioning media and the public’s role in oversight of incumbent powers. An improved freedom of information act is among the key reforms detailed in the IMMI parliamentary resolution.

FOI progression since the IMMI resolution:

  • A new Information Act was passed in January 2013. It does not satisfy the IMMI resolution’s level of quality and assurance, as referred to with regards to the public’s access to information.

Currently under review:

  • A provision in the constitution ensuring more extensive rights for public for access to information.
  • Whether limitations regarding FOI in the new Information Act need to be investigated, especially in regard to the economic interests of the state.
  • How to strengthen the governments’ obligation to make public its case records.
  • Other reforms of the Information Act to ensure better the publics’ right to information.

 

Source Protection

For the media to be able to disseminate relevant information to the public it is vitally important that journalistic sources be ensured anonymity. When the IMMI resolution was passed this was ensured in the Law on Criminal Procedure. There it states that it is unauthorised to identify a source without their expressed prior approval. A judge can rule that a source be named to give testimony if it is considered likely to prove vital in a criminal case, with the provision that those interests overrule the source’s rights to remain anonymous.

Source protection progression since the IMMI resolution:

  • Source protection has been emphasized in the new Information Act, with a special provision. According to it journalists are unauthorized to name their sources without their consent or a judge order when it comes to a criminal case.

Currently under review:

  • Whether source protection needs to be strengthened further and whether there need to be further limitations on when a judge can order the unveiling of a source to satisfy witness accounts during criminal case proceedings.

 

Whistleblower protection

Whistleblowers satisfy an important role in disseminating information on mismanagement, corruption and various offences committed by the authorities, handing over said information to investigative bodies, institutions tasked with oversight or the media, in order to enlighten the public. Such information is often of grave importance to the public although little focus has been given to the consequences such actions have for the whistleblower in question. When it comes to whistleblowing it is common for an employee to blow the whistle on his/her employers. It is also common for such an employee to subsequently lose their job, though reporting on such matters is often quite minimal if any.

Whistleblower protection since the IMMI resolution:

  • Dr. Páll Hreinsson has been tasked with creating a bill to simplify and unify legal provisions on secrecy demands placed public sector workers (estimated to be put to parliament in spring ’14).
  • A bill on whistleblower protection drafted by members of parliament is ready. It is unsure what reception said bill will receive.

Currently under review:

  • Whether the steering committee should commence preparing a bill with similar objectives as the bill drafted by members of parliament referred to here above.
  • What the legal status and responsibility of whistleblower sites and whether they need specific protection.
  • Whether changes need to be made to the existing labour law.
  • Whether changes need to be made to copyright law and whether there needs to be an exemption clause due to whistleblowing.
  • Whether privacy protection laws need revision due to whistleblower protection.
  • Whether whistleblower protection is clear and precise enough in laws on investigative committees. Evaluate whether the work process of Alþingi’s investigative committee which investigated the causes of the banking crisis should be used as a benchmark.
  • Potential changes to the penal code due to whistleblowing in the interest of the general public.
  • Evaluate ways that ensure an inalienable right to hand over information to elected representatives.

 

Communications Protection

Legal protection for both sources and whistleblowers can only go so far if information of communications between individuals are stored with a third party. As journalistic sources are often in communication to journalists via telephones or the Internet it is clear that source protection could be sidestepped due to data retention. The European Federation of Journalists have stated that data retention endangers source protection as sources can be identified through statistics. This blanket data retention endangers sources freedom of expression as well as the legally protected rights of journalists (media).

The telecommunications act, no. 81/2003, takes to telecommunications carriers and requires telecommunications carriers to retain telecommunications data for 6 months due to criminal investigations and public safety. Furthermore, it is states that telecommunications carriers are only authorised to hand over said data to the police authorities or the courts. The telecommunications act is in part based on a directive by the European Parliament and it’s council no. 2002/58/EC from the 12th of July 2002 on the processing of personal information and privacy in communications, with later amendments. The constitutional courts of many European nations have deemed data retention illegal and violating a constitutional right to privacy.

Another piece of legislation regarding communications protection in Icelandic law is in laws on electronic commerce and other electronic services. In these laws the responsibility of intermediaries, such as ISPs and data centres, is limited. Exceptions to this limitation are few and most are well defined in the law, however, a general exception due to injunction in article 14 without more in depth definition raises worries. This clause would be improved by defining under which circumstances exceptions of intermediaries’ limited responsibility is made.

Communications protection since IMMI resolution:

  • Committees within Alþingi have twice blocked attempts to incorporate the EC data retention directive into the EEA agreement, which would entail that it would be impossible to remove it from Icelandic law.

Currently under review:

  • To remove data retention by voiding clause 2 of article 42 in the telecommunications act.
  • To better define rules on exceptions to limited responsibility of telecommunications intermediaries and in which cases a prohibition is deemed justified.

 

Limiting prior restraint

According to Icelandic law it is possible to acquire an injunction prohibiting certain material to be shown or published (e.g. the injunction obtained by Kaupthing bank prohibiting RUV, the national broadcasting service, to report on Kaupthing’s loans account leaked online by Wikileaks in the autumn of 2009).  Injunctions of this kind can place severe restrictions on freedom of information and freedom of expression and in most democratic states there are strong and even universal limitations put on such injunctions. It is necessary to ensure solutions to protect the citizens privacy with solutions such as these but it also be ensured that such laws will not be abused and utilized to hush debate, repress dissent and limit and restrict the public’s (and the media’s) constitutional right to freedom of expression.

Currently under review:

  • Whether to maintain the option to block the publication of material and whether compensations claims and libel damages (subsequent to publication) satisfy reputation and privacy protection concerns.
  • To seek ways to ensure injunctions not be used as a tool to silence criticism or dissent.
  • Whether it is appropriate that the power to enact an injunction lies with the county magistrate.
  • Whether changes to court procedure at a county magistrate (or the authority processing motions for injunctions) need to be made.
  • How to ensure that the authority processing motions for injunctions support its decision with a view to information freedom.

 

Defamation law

The press often publish news which can cause suffering and damage to individual’s reputation, as it may describe conduct seen in a negative light. A common response to this is to sue publishers or journalists on the grounds of defamation. The abuse of defamation and libel law to silence criticism and dissent can happen and has occurred when the media publish information which is relevant to the general public.

The clauses within the penal code on libel and defamation have been almost unchanged since its enactment in 1940. In the time that’s passed there have been great reforms in the sphere of human rights. It is highly doubtful that the contents of clauses on libel and defamation are in line with new perspectives on human rights, in particular freedom of expression which is protected both in the Icelandic constitution as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights (ECHR) has escalated its criticism of penalty clauses in libel law despite not having declared that penalties for libel are incompatible with the clauses of the convention. Furthermore, the Council of Europe has encouraged its member states to review the penal clauses in their libel laws.

Defamation Law since the IMMI resolution:

  • Liability of intermediaries (journalists) has been defined in a new set of laws on media which came into effect on the 21st of April 2011. The law states that an individual is responsible for material which is published or is attributed to her or him in an obvious manner. When an identified source is quoted the source is responsible for her or his quote if the source in question has agreed to the quotes being published. This clause is a reaction to the ruling by the European Court of Human Rights which ruled against the Icelandic state in the cases of the journalists Erla Hlynsdóttir and Björk Eiðsdóttir who had been found guilty of defamation in the Icelandic courts for quotes of their sources they had published word for word.

Currently under review:

  • Whether penal clauses should be removed from defamation law in part or wholly which would bar individuals from making a claim for penalty in a private cases when it comes to defamation.
  • How best to ensure the protection from slander with private court cases where a court could use tools such as damage claims and the annulment of statements.
  • Whether the responsibility / non-responsibility of a journalist as an intermediary of information needs to be more clearly defined.

 

Libel tourism protection

The completion of foreign ruling within Iceland can interfere with freedom of speech. A private court ruling abroad can be completed in Iceland when foreign courts maintain that they have jurisdiction over particular works, articles or quotes that have been published in Iceland. An Icelandic citizen could for instance publish an article in a foreign magazine, or a statement made by an Icelandic citizen could have judicial effects in another state, leading court action against him by foreign courts, such that the Icelandic government is required to uphold judgement, collect damages and court fees, etc. The libel case against Hannes Hólmsteinn Gissurarson in the UK was highly populized, in part due to the interjurisdictional enforcement order and its interplay with the UK’s libel laws.

Currently under review:

  • How to limit the completion of foreign rulings which conflict with freedom of expression in Iceland.
  • Whether new laws in the US should be build upon here, which forbids the completion of rulings which clash with the constitutionally protected freedom of expression.
  • How membership to the EEA and the Lugano treaty limit Iceland in the above regard.
  • Whether claims of foreign courts regarding jurisdiction over works, articles and quotes published in Iceland need to be contested.
  • Whether membership to the Lugano treaty prevents the adoptions of such rules as referred to above.
  • Whether completions of foreign rulings which have to do with freedom of expression can be avoided when relations to the foreign jurisdiction are weak. Also review our commitments in this regard due to the EEA and Lugano treaty.

 

Judicial process protection

Equal access to the justice system and due process is a vital component of a well functioning democracy. Despite strong legal protections for freedom of expression it can prove problematic to defend against claims, not least because of the cost incurred by publishers, journalists and the general public. This demotivates journalists, and in particular investigative journalism. It should always be in the best interest for small publishers to defend themselves in court against financially powerful plaintiffs who want to prevent information being published.

Currently under review:

  • Whether the state should offer public judicial assistance in cases that have to do with freedom of expression.
  • Whether a privately run freedom of expression fund should be established.
  • Whether a defendant who defends his or her right to freedom of expression in court should avoid all legal costs if he or she wins their case, with the cost falling on the plaintiff.
  • Possible rules that enable a defendant to have his or her case classified as a freedom of expression case. If that is agreed to various protection clauses apply to the defendant during a trial. If a ruling is in the favor of the defendant all legal costs fall on the plaintiff.
  • Whether a specific clause is needed in procedural law to ensure judicial protection in this regard.

 

Protection of historical records

The ECHR’s interprets material online as being (re-)published online which causes significant worries with regards to freedom of expression. Comments do thereby not lapse and do not become depreciated. That way, a libel or defamation claim can be made on the grounds of old comments being put online and defined as being re-published. This interpretation of the ECHR has repeatedly been utilized and abused in order to remove articles from electronic press databases.

Currently under review:

  • How to define date of publishing when it comes to material that is accessible on an online database long before it was first made public.
  • Whether a time limit needs to be defined in this regard in order for libel claims can be made (e.g. within 2 months as is the case in France).
  • Review clauses in law on databases.

 

Virtual limited liability companies

Due to the protections proposed in the IMMI resolution it becomes desirable for international media and organizations to relocate their online residence to Iceland, with view to online publishing. By doing so, the parties who relocate online to Iceland could gain the protections proposed, as advised. It needs to be ensured that international companies and organizations will actually be protected by Icelandic jurisdiction.

Currently under review:

  • How companies/organizations can move their online operations to Iceland and what rules apply to that process.
  • Look at rules that are in effect here on the operations of online media, with considerations to international treaties and regulations, such as the EEA agreement.
  • Consider clauses within company law.
  • Consider clauses within media law regarding jurisdiction over media which publishes visual material by utilizing Icelandic earth station or satellites.
  • How the Icelandic state can exert jurisdiction over foreign media with an online presence in Iceland.
  • How to implement rules on accountability of international media here in Iceland.
  • Whether to change the scope of media law so that it applies only to companies that have been registered as such, of their own accord. This registration would then offer certain rights and protections but also bring with it accountability for media companies and duties which the media law places on companies.