23 September 1999

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NFFE responds to proposed constitutional amendments on freedom of expression


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(NFFE/IFEX) - The following is an NFFE press release:




PRESS RELEASE


The Norwegian Forum for Freedom of Expression (NFFE) praises the work of the
Norwegian Governmental Commission on Freedom of Expression, appointed by
Royal Decree of 23 August 1996, who put forward its proposed amendments to
Article 100 of the Norwegian Constitution yesterday. However, NFFE points
out in a press release, censorship still exists in Norway.


NFFE praises the work of the commission and its comprehensive report which
was published on September 22. Without making up its mind about the various
propositions in the report, the NFFE feels confident that the report and the
proposed new paragraph 100 of the Norwegian constitution will lead to more
openness, debate and freedom of expression.


However, the NFFE points to the fact that censorship still exists in Norway.
Norway still maintains an arrangement of so called advance state approval of
all textbooks. In a March 16 1999 letter, the NFFE asks that the commission
take a closer look at this system of control which Norway, with the
exception of Albania, is the only European country to maintain. This
arrangement of advance approval was introduced in 1898 and should now have
been abolished. Several Norwegian organisations, among them the NFFE, the
Norwegian Non-Fiction Writers and Translators Association (NFF) and the
Norwegian Publishers Association, have demanded that the arrangement be
abolished on several occasions.


The Commission supports the majority decision of a former governmental
report (1995) which suggests that the arrangement should be abolished.
However, the Norwegian Ministry of Education ignored this suggestion in its
subsequent report to the Norwegian Parliament.


"This arrangement prevents creativity and renewal - it invites disclaim of
responsibility and suppression of creativity", says Mr. Sigmund Strømme,
leader of the NFFE ad-hoc committee in charge of monitoring the work of the
Commission for the past three years. "In a freedom of expression perspective
this arrangement violates fundamental principles. A more liberal practice
would be a natural consequence of the implementations of the UN Universal
Declaration of Human Rights in Norwegian law. This is one of the most
important single propositions in the Commission's report because it concerns
the entire Norwegian system of education and, consequently, all the
citizens. It is therefore of extreme importance that all organisations
concerned work actively, so that this proposition is followed up by
Norwegian authorities", says Strømme.


Oslo, 23 September 1999


APPENDIX: an English summary of the report of the Commission follows


The Norwegian Governmental Commission on Freedom of Expression
English Summary


The Norwegian Governmental Commission on Freedom of Expression, appointed by
Royal Decree of 23 August 1996, puts forward the following proposed
amendments to Article 100 of the Norwegian Constitution:


1.There shall be freedom of expression.


2.No person may be held liable in law for imparting or receiving
information, ideas or messages unless such liability can be justified in
relation to the reasons behind freedom of expression, i.e. the seeking of
truth, the promotion of democracy and the individual's freedom to form his
or her own opinions. Such legal responsibility must be clearly prescribed by
law. No person may be held liable in law for the reason that a statement is
untrue if it was uttered in non-negligent good faith.


3.Everyone shall be free to speak his mind frankly on the administration of
the State and on any other subject whatsoever.


4.Prior censorship and other preventive measures may only be used as far as
is necessary to protect children and the youth from harmful influence of
moving pictures. Censorship of letters may only be implemented in
institutions and by leave of a court of law.


5.Everyone has a right of access to the documents of the State and of the
municipal administration and a right to be present at sittings of the courts
and of administrative bodies elected by the people. The law may only
prescribe such clearly defined limitations to this right as overriding
considerations show to be necessary.


6.It is the responsibility of the authorities of the State to create
conditions enabling an open and enlightened public debate.


"There shall be freedom of expression"


The Commission states as its basic opinion that Norway should be an open
society in which everyone should have the right to express him- or herself,
freely and to keep him- or herself, informed. An enlightened, active and
critical public debate is the cornerstone of democracy. This view follows
from the wording "There shall be freedom of expression" and is thus
affirmatively expressed in the first paragraph of the proposed amendment.


Freedom of expression as a concrete concept


The proposed new Article 100 will provide for a better protection of freedom
of expression, compared to the present Article 100 of the Norwegian
Constitution. Any impediment to free speech must be justifiable in relation
to the reasons behind freedom of expression.


By emphasising - in the constitution itself (second paragraph) - the three
main reasons for freedom of expression, one will achieve a realistic balance
between, on the one hand, the interests favouring restrictions on the right
to freedom of expression, and on the other hand, the need to avoid the harm
or interference that may be caused by the restrictions on the three
dialectic processes which require, by their very nature, unsupervised
communication, i.e. freedom of expression. The three processes are the
dialectical seeking of truth, uninhibited debate on matters of public
concern in a democracy, and the individual's freedom to form his or her own
opinions by imparting and receiving information and ideas. These three
reasons in favour of freedom of expression are thoroughly described in the
report (Chapter 2). Our method of approaching the difficult question "What
may be a legitimate restriction on freedom of speech?" ensures that free
speech will be seen as something more than an abstract principle - open to
an inherent risk of misunderstanding and thus to a risk of a lower priority.
Free speech should as a result of our method be regarded as a concrete
requirement of partly universal importance. Legal restrictions on the right
to impart information and ideas (in the report named "classical free
speech"), the right to receive information and ideas (named "freedom of
information"), and the right not to speak ("the right to remain silent")
that can not be justified or defended, in the light of the three reasons for
freedom of expression, may not be enacted, adopted or enforced (first and
second sentence of the second paragraph).


Restoration of the degree of guilt


The Commission proposes that no person should be held responsible for the
reason that the content of an allegation is untrue, if the person uttered
the statement in non-negligent good faith (third sentence of the second
paragraph). The Commission sees this as partly restoring the degree of guilt
implied by the phase "wilfully and manifestly" in the present Article 100.
The requirement of acting "wilfully and manifestly" has - at least since
1842 - not been understood as a hindrance to strict liability regarding the
truthfulness of the content of a defamatory accusation. The Commission finds
it unreasonable to hold a person liable for untrue statements when the
person him- or herself was under a bona fide impression that he or she only
spoke the truth. Strict liability would also have an unwanted chilling
effect on public debate. True and important information would not be made
public for fear of failing to provide proof acceptable to the standards of
the courts of law. Such a restoration also seems necessary in order to
comply with the case law of the European Court of Human Rights.


The Commission also states that it is necessary to introduce, into national
defamation law, a distinction between statements regarding facts and
statements which must be seen as value judgements. It should be made clear
that no person is legally obliged to demonstrate the truth of a value
judgement.


The right to speak frankly


The Commission supports the present third sentence in Article 100, which
since 1814 has stated that "Everyone shall be free to speak his mind frankly
on the administration of the State and on any other subject whatsoever", and
proposes this sentence as the new third paragraph in the amended Article
100.


As opposed to the freedom in the second paragraph, the freedom guaranteed in
the third paragraph is without exemptions, as long as the speech can be
regarded as "frank" and the subject relates to matters of public concern.
The term "any other subject whatsoever» should be read in conjunction with
«the administration of the State", and thus be understood as an uninhibited
right to speak frankly on matters of public concern.


The third paragraph applies to restrictions on freedom of expression adopted
and enforced both by the state and by private entities (such as employers).


Prohibition of prior censorship


The Commission proposes that the scope of the Constitution's present
prohibition on prior censorship should be extended from its present
application to printed material to include any form of speech, regardless of
the chosen media (fourth paragraph). This means that today's censorship of
moving pictures - in relation to an adult audience - must be abolished.
Regulations which constitute a hindrance to the free establishment of
channels of communication in the public sphere may only be maintained in so
far as there are technical reasons for such regulations. The Commission
states that the fourth paragraph should be interpreted as having a
restrictive effect on the granting of interim injunctions against speech.
Likewise, the fourth paragraph means that demonstrations or other public
manifestations may not be banned in advance only because of the prospective
demands of the demonstration.


The proposal allows for exemptions from the prohibition of prior censorship
and other preventive measures as far as is necessary to protect minors from
any harmful influence of moving pictures, meaning both cinema films, video
films and other moving images. Private letters to and from inmates in
institutions, inter alia prisons and psychiatric hospitals, may be subject
to censorship provided that such censorship is based on a court order.


Access to information


The Commission proposes that the citizen's right of access to information
held by the public administration and the courts should be provided for in
the Constitution (fifth paragraph). Any exceptions from the right of access
to public documents or the right to be present at meetings must be
prescribed by law, and such exceptions may only be enacted when overriding
considerations so denote.


State responsibility for providing public speaking facilities


The sixth paragraph of the proposal emphasises the obligation of the state
to create the conditions necessary for an open and enlightened public
debate. The Norwegian state has for decades - even centuries - taken an
interest in the development and maintenance of the public sphere, and the
Commission sees it as important that the state's obligation in this
respect - which is more of a political than of a legal character - is
manifested in the Constitution. The overall obligation should be to secure a
plurality of voices in the public sphere, which inter alia includes an
obligation to help underprivileged groups to be heard by providing them with
the necessary means of addressing a wider audience.


The sixth paragraph means that the state should continue to fund education
and research, should continue to contribute financially - directly or
indirectly - to art, culture, newspapers and magazines (in Norwegian and in
minority languages), public service broadcasting and the variety of
organisations. The paragraph also creates a basis for legislation
restricting ownership concentration in the media.


The members of the Commission


The following 16 persons have been members of the Norwegian Governmental
Commission on Freedom of Expression:

1.Chairman Mr. Francis Sejersted, Professor of History, University of
Oslo,

2.Vice-chair Ms. Vigdis Moe Skarstein, University Director, Norwegian
University of Science and Technology, Trondheim

3.Mr. Jon Bing, Professor of Law, University of Oslo,

4.Mr. Thor Bjarne Bore, Editor-in-Chief of Stavanger Aftenblad,

5.Ms. Tove Bull, Rector of the University of Tromsø, Professor of Nordic
Languages,

6.Ms. Diis Irene Bøhn, Journalist, former President of the Norwegian Union
of Journalists, Oslo,

7.Ms. Kristin Høgdahl, Project Director, Norwegian Institute of Human
Rights, Oslo,

8.Ms. Nazneen Khan, Journalist, Oslo,

9.Mr. Ole Henrik Magga, Professor of Sámi Language, University of Tromsø,
former President of the Sámi Parliament,

10.Mr. Helge Rønning, Professor of Media and Communication, University of
Oslo,

11.Mr. Gunnar Skirbekk, Professor of Philosophy, University of Bergen,

12.Mr. Eivind Smith, Professor of Public Law, University of Oslo,

13.Mr. Hans Stenberg-Nilsen, Attorney-at-law, Oslo,

14.Ms. Ellen Stensrud, Information Director, the Norwegian Confederation of
Trade Unions,

15.Mr. Kjeld Vibe, Ambassador, Oslo,

16.Ms. Maria Fuglevaag Warsinski, Film director, Oslo.


Mr. Ørnulf Røhnebæk has been the legal secretary of the Commission
throughout its period of office, while Ms. Mona Aarhus has been the second
legal secretary as of 30 March 1998.


The Commission started its work in January 1997 and the present report was
submitted in September 1999. During its approximately two and a half years
of work, the Commission met for 32 days. Seven of the meetings (three in
Oslo and the others in Tromsø, Stavanger, Bergen and Trondheim) were
arranged as open hearings on different subjects relating to free speech,
inter alia journalism, defamation, minorities and their opportunities to be
heard, privacy, the responsibility of the distributor, national security and
sedition, and employees´ participation in public debate. More than 40 people
contributed with prepared speeches. In addition the Commission met with
various kinds of experts in closed sessions, inter alia Justice Antonin
Scalia of the US Supreme Court.


The Commission has initiated and financed four external studies and two of
them (in Norwegian) are printed in an annex to our report, namely Hans
Fredrik Dahl and Henrik G. Bastiansen: Ytringsfrihetens historie i Norge i
det 20. århundre (The history of freedom of expression in Norway in the 20th
century) and Kyrre Eggen: Norges internasjonale forpliktelser på
ytringsfrihetens område (The international obligations of Norway in the
field of freedom of expression).





Source

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