Estonia (a)

By Peyton Buie

Introduction

Estonia Flag

Flag of Estonia

Estonia is a North-eastern European country bordering Russia and Latvia, as well as the Gulf of Finland and the Baltic Sea. It is ranked number 12 out of 180 countries in Reporters Without Borders’ 2017 World Press Freedom Index with a score of 13.55, which constitutes a decline from number 11 in 2013 with a score of 9.26  (Reporters Without Borders, 2018). In general, however, it has maintained a spot within the top 20 countries since it was first ranked in a Press Freedom Index in 2003. Estonia has been ranked as free by Freedom House’s Freedom in the World index since its first ranking in 1998 and Freedom House’s Freedom of Press Index since its first ranking there in 2002 (Freedom House, 2018). Overall, since its independence in 1992, Estonia has maintained a strong sense of both speech freedoms and press freedoms.

History

The first people to settle in what is today Estonia did so around 9000 BCE, where it would remain a collection of small settlements until it was first conquered by Germans and Danes around the 13th century CE. These groups maintained firm control until the 16th century when the protestant reformation opened the way for the Swedes to take control of the region in a series of wars beginning around the middle of the century. Estonia would remain under Swedish rule from 1629 until 1710 when the Russian empire physically conquered it, allowing “the Baltic landowning nobility (to) retain… its political, social and economic hegemony” over the region (Europa World Plus, 2018).

It was not until the collapse of both the Russian and German empires that Estonia had the chance to establish a government of its own. On Feb. 24, 1918, Estonia declared independence and after two failed invasions (one by Germany and the other by Russia), it was recognized as its own independent country in 1921. Estonia would establish a liberal democracy with its 1920 constitution which would later be replaced by the 1938 constitution, a document passed with the intent to create a presidential system of government that was primarily populist. The new government established by the 1938 constitution allowed all but those in power to have their freedoms of speech and expression legally suppressed by the government (Europa World Plus, 2018).

This new regime, however, would only rule Estonia for a short time, lasting until June 1940 when the Soviet Union forced Estonia to establish a pro-Soviet government with full incorporation into the USSR occurring in August of that year. (Europa World Plus, 2018). Under Soviet rule, Estonia actually managed to maintain a high standard of living in comparison to other Soviet states, with some modernization occurring under Soviet rule. The USSR claimed “three times the number of students attend the republic’s universities and colleges” in 1959 than did so before the USSR took over (Muurisepp, 1959). This claim is largely substantiated by the fact that the Estonian Academy of Sciences established the Institute of Economics, the Institute of History, and the Institute of Language and Literature in 1947, however the college would not add the Institute of Philosophy, Sociology, and Law until Soviet rule was critically weakened (just one month before Estonia declared sovereignty from Soviet rule) (Vinogradov & Ruble, 1993). This may show that, although Estonia flourished under Soviet rule, the Soviet Union still managed to limit speech by only educating its citizens in subjects that would not encourage them to challenge and change governmental structure.

Freedom from the Soviet Union was finally achieved in 1988, with the first elections taking place in 1990 and a formal constitution being adopted in 1992. This constitution laid out the structure of the resulting government: A three branch government consisting of the Riigikogu (or State Assembly), the sole Estonian legislature made up of 101 members elected to four-year terms, the president, who is elected by the Riigikogu for a five-year term, the Council of Ministers headed by the prime minister (who is nominated by the president) which controls the executive branch, and finally the judicial branch which contains the Supreme Court, district courts, and rural/city courts (Europa World Plus, 2018). Since it established its second domestic government at the end of the 20th century, Estonia has remained independent of foreign hegemony (Europa World Plus, 2018). Estonia joined the EU in 2004, adopting the euro as its currency and opening the way for more inter-European trade.

While Estonia was almost completely Estonian in ethnicity prior to Russia’s first invasion in the 18th Century, by the collapse of the Russian empire, it was about one third Russian and two thirds Estonian in ethnicity. As of 2017, Estonia’s population of 1,231,466 were 65 percent Estonian, 28 percent Russian, and the remaining seven percent were other ethnicities. Being in the northern hemisphere, Estonia is on average a chilly 24 degrees Fahrenheit in the winter and 62 degrees Fahrenheit in the summer, experiencing plenty of rain during all seasons (Country Watch, 2018).

Free Speech

Neither speech nor press were free in 1938 when Estonia wrote its second constitution just before the Soviet took control. Along with Soviet annexation came the infamous suppression of thought that occurred in Soviet states via the government’s publishing of communist propaganda while also actively suppressing any speech that contradicted the status quo. During that time (from around 1940 to 1980), Estonia did not enjoy free speech at all, but rather suffered from a government that actively sought to control the thoughts and opinions of the people.

The 1992 Estonian Constitution established after secession from the Soviet Union made large strides in the areas of free speech and expression. Article 19 declared that everybody had the right to “develop his/her personality,” as they wish, Article 41 gave “everyone… the right to remain faithful to his or her opinions and beliefs,” and Article 42 guaranteed the right to free exchange of messages by means other than voice. Most importantly, Article 45 stated, “Everyone has the right to freely disseminate ideas, opinions, beliefs and other information,” guaranteeing freedom of expression barring a limited list of circumstances. The one limitation on freedom of expression that is not directly related to maintenance of national security/criminal case proceedings came from Article 17, which expressly stated that nobody’s “honor or good name shall be defamed,” (Constitute Project, 2015). As evidenced by Estonia’s consistent “free” rating in Freedom House’s Freedom in the World Index, including a 94 out of 100 aggregate score (with 100 being maximum freedom), the Estonian government has done a good job of upholding its ideal of allowing freedom of speech.

As stated in Article 17, only in cases in which some form of defamation took place could speech be censored or suppressed. In the 2001 case Tammer v. Estonia, the European Court of Human Rights (an international court established by the European Convention on Human Rights that hears cases concerning the abridgement of civil/political rights by a member government) unanimously held that Estonia had not unreasonably violated human rights when it convicted a citizen named Enno Tammer for having made defamatory remarks about another person in an interview from a 1996 newspaper. The court concluded that because the punishment imposed was only a fine of 220 Estonian Kroons (the Estonian currency prior to its adoption of the Euro), it was not disproportionate to Estonia’s legitimate aim of protecting its citizens from defamatory speech (Human Rights Case Digest, 2001).

In Delfi AS v. Estonia, another case decided by the European Court of Human Rights, a newspaper was held responsible for comments about a nearby ferry company made on its website by anonymous users, which the Estonian justice system considered to be defamatory speech on Delfi’s part and issued a fine of 330 Euros. The court based this 2013 decision on the fact the company had not established sufficient measures to prevent a third party’s reputation to be damaged on a forum of discussion it hosted. This decision was criticized worldwide for its liability implications for online forums as well as freedom of digital anonymity (Susi, 2014).

Even though both cases were decided against free speech, it is still true that freedom of speech in Estonia is only ever breached when that speech is defamatory or somehow creates threatening conditions for the Estonian people, their privacy, or justice.

More recently, in August 2017, the Russian embassy in Estonia’s capital criticized Estonia’s freedom of speech, calling it “selective,” after Estonian authorities decided not to accredit employees of Russia’s state news agency for an EU presidency event held in Estonia (Cavegn, 2017). This statement, however, seems very much to be politically charged considering Russia was ranked 148th out of 180 countries in Reporters Without Borders’ 2017 World Press Freedom Index, showing the country likely does not have any qualms when it comes to restriction of speech. Another issue involving free speech came up in 2017, stemming from a short story written by Kaur Kender three years prior. Kender was charged with producing child pornography in his short story; however, he was acquitted after the court found that his writings “qualified as transgressive literature with literary and artistic value” and “lacked the features of pornography,” (Vahtla, 2017). It appeared that Kender’s speech was crude at the very least to have sparked a court case involving the production of child pornography, however Estonian law remained on the side of free speech as it has demonstrated that it does for all but a few very specific and serious cases.

Free Press

When the Soviet Union annexed Estonia in 1940, all private publishers from hardcover book producers to newspaper printers were closed and of all official avenues to publication were seized by the Soviet Union. Among the goals of the Soviet Union was the use of the news and literature to “’show the advantages of socialist ideology and collectivism… [and] to foster the feelings of Soviet patriotism,’” (Parming & Järvesoo, 1978). This complete restriction of the press in favor of propaganda production would continue for almost five decades until Estonia became independent of the USSR.

Amid a failed Soviet coup to retake control of Estonia in late August 1991, a Russian newspaper in Estonia came out against the coup and in favor of democracy. The newspaper’s correspondent to parliament at the time of the coup remarked about how the newspaper published the events of the coup as quickly as possible after they happened to help spread national awareness (Bergquist & Weiss, 1994). Had the coup succeeded, it was integral that the information spread as quickly and truthfully as possible to give Estonians across the country time to react and possibly form a coalition against the coup. The newspaper filled this role despite the fact that it was written specifically for Russian-speaking Estonians, meaning even though national origin would have aligned these journalists with Russia, they stayed true to the values of their new country which now included freedom of the press (at least in so far as their compliance in fulfilling this role).

True protections of freedom for the press were guaranteed the following year in the 1992 Estonian Constitution. Article 45 of the constitution gave all people the right to freely disseminate their thoughts and opinions openly and stated without qualification that “There is no censorship.” Articles 41 and 42 established that beliefs and opinions hold no legal weight (you cannot be punished for your belief but it also does not excuse unlawful behavior) and provided that no state agency will collect a citizen’s information without their consent (Constitute Project, 2015). These guarantees of freedoms were almost the complete opposite of what the country had been facing only a decade before; furthermore, by writing them into the articles of its constitution, Estonia displayed its interest in establishing and protecting freedom of the press, and by maintaining its good standing on the Reporters Without Borders’ World Press Index, Estonia shows commitment to that interest in all but a few matters.

One of the largest roadblocks to freedom of press comes from within the very constitution that established that right. Article 17 of the constitution stated plainly: “No one’s honor or good name shall be defamed,” (Constitute Project, 2015). This includes both speech and press, however due to the more public nature of the press it more often is used against the media. In addition, the legislature passed amendments allowing judges to jail reporters who refuse to reveal their sources for stories about serious crimes (Reporters Without Borders, 2018). Even considering this abridgement of press freedom, Estonia still maintained a very free and open climate for the press. In November 2017, the Estonian Deputy Minister for EU Affairs Matti Maasikas stated, “The disclosure of documents by investigative journalists is beneficial to us all, as it draws attention to evasion and increases awareness a well as the understanding that scheming… is unethical,” in response to the publishing of the Paradise Papers (a massive illegal leak of financial information that revealed tax fraud) (Vahtla, Estonian deputy minister: Investigative journalism helps prevent tax fraud, 2017). Furthermore, in September 2017 Estonia’s Minister of Foreign Affairs, Sven Mikser said, “Media freedom and plurality are parts of our society’s foundation. Information must be accessible to everyone, but at the same time, we cannot let propaganda hide behind media freedom.” Mikser then went on to stress the importance of critical thought and healthy skepticism when approaching the media and state that, “Free and professional media in Eastern Partnership countries is in all of our interests and we would like to contribute to it,” (Vahtla, Mikser: Propaganda should not hide behind media freedom, 2017). While it is true that Mikser was speaking out against free speech, he was doing so against speech intended to misinform readers (fake news) and in favor of truth and his proposed solution was to encourage public vigilance rather than legislatively restrict speech. In fact, legislative action is a real legal possibility as Article 45 of the 1992 Estonian Constitution allows restriction of speech to “protect public order, morals, and the rights and freedoms… of others,” (Constitute Project, 2015). Furthermore, Mikser expressed Estonian interest in promoting media freedom in other countries, which shows a willingness to encourage other countries to follow Estonia’s lead and allow the development of professional and ethical media.

Estonians appeared to be so committed to this ideal, in fact, that in December 2016 their prime minister himself, Taavi Rõivas, said “the best defense against propaganda was ensuring the freedom of the media,” in response to Russian propaganda from the Kremlin-controlled news source Sputnik.ee. He went on to say “We will not ban them so long as they do not break Estonian law,” and stating that this reaction was centered around Estonia’s commitment to free speech (Cavegn, Prime Minister: Free media best antidote to propaganda, 2016). It is true that, aside from a few specific exceptions (defamation, jailing of reporters who do not reveal sources in stories about serious crimes, etc.), Estonia values freedom of speech and freedom of press above most other concerns.

Critical Comparison

One major difference between the operations of the United States legal system and the Estonian legal system is the fact the Estonian Supreme Court can be asked to apply constitutional review by the chancellor of justice, the president, or any local government council or inferior court (Riigikogu, 2002). That is much less restrictive than the U.S. policy of allowing constitutional review at the supreme court level only after the case in question has been tried in a district court, appealed, taken up to the court of appeals, appealed again, then granted certiorari when four out of the nine justices agree they should hear the case. This means that in Estonia, the government has the ability to skip what would be months and possibly years of litigation in the United States court system. In having the ability to skip straight to the Supreme Court, the executive branch of government has considerably more power over its legislature through the judiciary than the U.S. President has over Congress through the U.S. judiciary.

With structural considerations aside, speech would appear to be freer in Estonia than in the United States. One of the major supporting factors of this assertion is the fact that the Supreme Court of Estonia has not had a chance to rule on the constitutionality of any freedom of speech or press laws in the almost 30 years since it was established. The two cases previously mentioned (Tammer v. Estonia and Delfi AS v. Estonia) were both European Court of Human Rights Cases and as such were not tried in the Estonian Supreme Court. In addition, these two cases dealt with whether or not an Estonian law was in violation of Article 10 of the European Convention on Human Rights (which establishes freedom of expression for everyone within a country that agreed to the European Convention on Human Rights except when suppression of such expression is in the interest of national security, public safety, prevention of defamation, or to prevent crime) (Susi, 2014). In both above cases, the court ruled in favor of Estonia because both cases dealt with speech that was prohibited under Article 10 (in other words, both dealt with defamatory speech). Given the lack of litigation in the Estonian Supreme Court, it is reasonable to assume that few if not none of Estonia’s laws have contradicted the rights laid out in its constitution. In fact, Estonia has very few laws that even restrict speech and those that do (such as those discussed in the Tammer and Delfi AS decisions) are both constitutional and within Article 10 of the European Convention on Human Rights.

Article 45 of the Estonian Constitution of 1992 gives everyone the right to express their own opinions and beliefs, a right that can be restricted in order to protect public order, morals, and the rights and freedoms, health, honor and good name of others,” (Constitute Project, 2015). This is very similar to the United States policy law which also holds that defamatory speech is not protected under the First Amendment. In addition, the U.S. Supreme Court has held that restrictions can be placed on the freedom of speech when such speech is likely to incite lawlessness, includes obscenity, child pornography, fraud, “fighting words,” or speech that presents a grave and imminent threat that the government has the ability to prevent. While the Estonian Constitution is in agreement with the United States’ precedents on some of these issues (speech likely to incite lawless action, obscenity, fighting words), on other issues it was legislative action that made the two more similar (such as Estonian laws that prohibit the production and/or distribution of child pornography).

Estonia has no laws differentiating the rights of expression of minors from those of adults, meaning in theory, Estonian students have the same rights (at least so far as speech goes) as Estonian adults and more rights than American students. In addition, Estonia does not have a law prohibiting any sort of flag desecration, so much like in the United States (however without judicial intervention) one may treat a flag however they please. As evidenced by the Estonian Constitution, speech does not have to be true to be protected by the doctrine of freedom of speech (another commonality with the United States, however, again, it had to be decided ultimately in the U.S. Supreme Court). Because of the long history of U.S. Supreme Court cases dealing with freedom of speech and the fact that Estonia has not had to decide any freedom of speech related cases since it was established, it would appear that Estonia has restricted less speech than the United States.

Freedom of press also appears to be a more strongly protected right in Estonia than it is in the United States. Article 45 of the Estonian Constitution provides the absolute, “There is no censorship.” This blanket statement (as well as the evidence that it has not been diminished) certainly appears to go much farther towards freedom of press than in the United States. In the United States, cases such as New York Times Co. v. United States are clear examples of the fact that, although it may not always be constitutional, the U.S. government still exercised the power to censor in extenuating circumstances (such as in the interest of national security) (New York Times v. United States, 1971). In addition, simply analyzing the rhetoric of Estonian politicians (such as Deputy Mister for EU Affairs Maasikas and Prime Minister Rõivas) who commend the press for serving their duty as a watchdog and allow even the most obviously biased and slanted news outlets to continue to produce news in conflict with the government’s position. When this is compared to the Trump administration of the United States and its policy of delegitimizing media outlets it disagrees with, it appears clear that Estonia values its freedom of the press more than the United States does.

Conclusion

Although one might assume a country as recently liberated from complete Soviet control as Estonia was would have trouble maintaining adequate freedoms of speech and press for its citizens, the opposite appears to be true. When compared to the United States, Estonia seems more comprehensive in its protection of the freedoms of speech and the press (even though defamation laws make such cases much easier for plaintiffs to win in Estonia). This is evidenced by Estonia achieving high scores and rankings in all freedom of speech and press indexes published by Reporters without Borders and Freedom House. Although a new president took office in 2016, it is unlikely he would be able to (or even want to) create legislation that would limit freedom of speech given the limited role of the president in policymaking. Therefore, there are no foreseeable losses of freedoms of speech or press in Estonia’s future.

 

References

Bergquist, W., & Weiss, B. (1994). Freedom! Narratives of Change in Hungary and Estonia. San Francisco: Jossey-Bass Inc.

Cavegn, D. (2016, Feb. 12). Prime Minister: Free media best antidote to propaganda. Retrieved from ERR.ee: https://news.err.ee/117987/prime-minister-free-media-best-antidote-to-propaganda

Cavegn, D. (2017, Aug. 31). Russian embassy: Freedom of speech in Estonia ‘selective’. Retrieved from ERR.ee: https://news.err.ee/615806/russian-embassy-freedom-of-speech-in-estonia-selective

Constitute Project. (2015). Estonia’s Constitution of 1992 with Amendments through 2015. Retrieved from Constitute web site: https://www.constituteproject.org/constitution/Estonia_2015?lang=en

Country Watch. (2018, Apr. 1). Country Reviews – Estonia. Retrieved from Country Watch web site: http://countrywatch.com.libproxy.txstate.edu/Intelligence/CountryReviews

Europa World Plus. (2018, Mar. 30). Estonia – History. Retrieved from Europa World web site: http://www.europaworld.com.libproxy.txstate.edu/entry/ee.hi

Freedom House. (2018, Mar. 30). Freedom of the Press – Estonia. Retrieved from Freedom House web site: https://freedomhouse.org/report/freedom-press/2017/estonia

Human Rights Case Digest. (2001). Tammer v. Estonia. Human Rights Case Digest, 49-51.

Muurisepp, A. (1959). Estonia; Wonderful Present – Marvelous Future. London: Soviet Booklet.

Parming, T., & Järvesoo, E. (1978). A Case Study of a Soviet Republic; The Estonian SSR. Boulder: Westview Press.

Reporters Without Borders. (2018, Mar. 29). Estonia. Retrieved from Reporters Without Borders web site: https://rsf.org/en/estonia

Riigikogu. (2002, Mar. 13). Constitutional Review Court Procedure Act. Retrieved from Riigiteataja.ee: https://www.riigiteataja.ee/en/eli/528122016013/consolide

Susi, M. (2014). Delfi AS v. Estonia. The American Journal of International Law, 295-302.

Vahtla, A. (2017, Jun. 6). Court makes reasoned decision in Kender case, state prosecutor to appeal. Retrieved from ERR.ee: https://news.err.ee/600395/court-makes-reasoned-decision-in-kender-case-state-prosecutor-to-appeal

Vahtla, A. (2017, Nov. 15). Estonian deputy minister: Investigative journalism helps prevent tax fraud. Retrieved from ERR.ee: https://news.err.ee/642733/estonian-deputy-minister-investigative-journalism-helps-prevent-tax-fraud

Vahtla, A. (2017, Sep. 13). Mikser: Propaganda should not hide behind media freedom. Retrieved from ERR.ee: https://news.err.ee/618408/mikser-propaganda-should-not-hide-behind-media-freedom

Vinogradov, V., & Ruble, B. (1993). A Scholars’ Guide to Humanities and Social Sciences in the Soviet Successor States. Armonk: M. E. Sharpe Inc.

 

This essay was last updated April 30, 2018.

 

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