Russian media 'censorship' overrules Swedish & Danish constitution

Member states' constitutional defence of freedom of expression has been set aside. And this democratic downturn, has happened almost without public debate, or critical media coverage.

It is hard to understand how this can happen in Denmark and Sweden.

In Norway — not an EU member state, but a country that very often follows EU initiatives — the conclusion was different: namely, that a ban conflicted with the constitution.

'Control is freedom. Banning dangerous speakers is democracy. Freedom of expression does not include hostile propaganda.' This is not a rewriting of George Orwell's 1984. Nor is it a translation of the Russian arguments for expelling foreign journalists or for sentencing domestic critics to 15 years in prison.

What is it, then?

It is how the European Court of Justice in Luxembourg justifies why we should not have access to the Russian media RT, Sputnik, Rossiya RTR, Rossiya 24 and TV Centre International. Why we should be charged if we quote the content of those media.

In a decision on 27 July, the General Court, approved the decision of the foreign ministers to ban the two state-controlled Russian media on 1 March.

Among the 15 unanimous members were both a Danish and a Swedish judge — from countries whose constitutions prohibit censorship and distribution bans.

In Sweden, chapter 1, §1 of the Freedom of the Press Act, a part of the constitution, states : "(...) the right of everyone to publish without prior interference by a public authority or other public body."

In Denmark, § 77 of Grundloven, the Danish Constitution, grants any person the liberty to express her or his ideas in any form and states that: "Censorship and other preventive measures shall never again be introduced."

EU law vs freedom of speech

In EU law, this classic view of freedom of expression apparently carries less weight.

The tribunal argues that freedom of expression is not infringed, despite the explicit prohibition of dissemination. RT and Sputnik employees are still allowed to do research and interviews — just not to disseminate their results.

The council's decision and the court's ruling have so far been ignored by the Swedish and Danish media.

It is conceivable that the two decisions are not considered newsworthy, or the fear is of being associated with the Russian propaganda machine.

Russia's invasion of Ukraine is a violation of international law, a war in breach with the UN Charter and a gross violation of Ukraine's sovereignty.

And yes, RT and Sputnik are state-controlled media platforms with an agenda formulated by the powers that be in Moscow. They have a consistent Kremlin-friendly choice of topics, sources, and angles. Everyone can, or rather could, ascertain that by introspection. Not any longer.

The problem with the court's decision is not that we lose all access to Russian propaganda or to official Russian statements.

Sputnik and RT can be accessed from any computer via a virtual private network, of course. National and international media still see it as their duty to also report the official Russian positions.

The problem is that the court — like the Council of Ministers — is taking on the task of deciding what we — as European citizens — should have access to. We — the citizens — are not believed to be able to deal ourselves with unfiltered statements from questionable sources.

The 'censorship' clauses

The tribunal's discussion of freedom of expression and information takes up 20 of the 46 pages of the judgment. It is a saddening read.

The judges find it necessary to "sanction or even prevent all forms of expression that disseminate, incite, promote or justify hatred based on intolerance, the use of violence and the glorification of violence." [authors' translation].

The court grants itself the right to define acceptable journalism:

"The right of the media, and of journalists in particular, to report on matters of public interest is protected, provided that they act in good faith, on the basis of accurate facts and provide 'reliable and accurate' information in accordance with journalistic ethics or, in other words, in accordance with the principles of responsible journalism."

Censorship powers are, according to the General Court, part of EU law:

"Since propaganda and disinformation campaigns (...) will form an integral part of the arsenal of modern warfare, the restrictive measures in question also form part of the Union's pursuit of the objectives, in particular peaceful objectives, set out in the Treaty".

Our right to receive or seek information is as limited as the right to inform:

"(...) if the interference with the right to broadcast programs is justified, the same applies even more so to the restriction of the public's right to receive such programs".

In other words, the court's defence of freedom of expression and information is as elastic.

Threat to public order

The main reason given by the court is that the Russian media constitute a threat to public order in the EU. There is no confidence in our ability to deal with contradictory views of events. The EU institutions decide what we can cope with.

Freedom of expression is not absolute, and never was.

Charges can be brought against a range of punishable expressions; threats, defamation, incitement to violence, disclosure of defence secrets to name but a few — but prosecution must be ex post facto, not before the offending expressions have been said or disseminated, and indeed never as a general measurement.

The Council of Ministers' decision, and its approval in the court, thus override the Swedish and the Danish Constitution. They raise doubts about how firmly democratic values are anchored in the EU's leadership and whether the EU as an organisation stands for the rule of law.

Norway is different

It's in this respect interesting to see that Norway, not an EU-member, has taken a different stand.

"The constitution sets very high standards for restricting freedom of expression. And as of today, it is difficult to see that these actors pose such a threat to fundamental societal interests in Norway that it can defend advance censorship through a general ban," Anette Trettebergstuen, Norwegian minister of culture declared in Stortinget, the Norwegian parliament in April.

This dismantling of a classic liberal fundamental right in Sweden and Denmark has been done without any public debate. Are we the only ones to notice and care?