Estonia (b)

By Nick Williams

Introduction
Republic of Estonia Flag

Estonia is a former Soviet-bloc country that relatively recently attained its independence and implemented foundational guarantees for human rights and freedom of expression in its constitution; this may be in some part responsible for its high rankings in individual-liberty indices. It has existed since the early 1990s with little contention around these rights. Its citizens evidently exercise their freedoms to speak and publish without much issue. As the nation’s modern history develops, some questions have begun to arise around certain applications of free expression and its implications for the press. The Reporters Without Borders 2017 World Press Freedom Index lists Estonia as the 12th most free nation of the 180 it measures.[1]

Historical Background

A northern European country, bordered by Latvia, Russia and the Baltic Sea, Estonia’s past has been marked by uncertainty and conflict of rule. The area that is now Estonia was settled by early Northern European tribes in loosely ordered regions first described in 1st century writings and existed uncontrolled by any major body of power for thousands of years.[2] By the early 13th century, the northern part of the country had come under Danish control while the Teutonic Knights, a German military order, held the southern region known as Livonia. In addition to Denmark and Germany, other surrounding countries had interests in the area, including Sweden, Poland and Russia, and from the 16th through the 19th centuries, control of Estonia rapidly changed hands, its residents submitted to nearly constant war and conflict.[3] By the mid-19th century, both the northern and southern Estonian regions were firmly under Russian control. Serfdom was officially abolished, and former peasants received the right to purchase land. Estonia attained self-governance as a single nation following the Russian Revolution of 1917, becoming an independent republic in early 1918. It joined United Nations precursor the League of Nations in 1921 and enjoyed a brief period of independence before coming under Soviet rule in 1940; membership in the USSR persisted over the next several decades, albeit without complete recognition by some nations including the United States.

In the late 1980s, following then Soviet leader Mikhail Gorbachev’s restructuring movement that included steps toward modernizing the USSR by providing greater bandwidth for free markets and loosening controls on free expression, many Estonians began engaging in peaceful protests of Soviet dominion in what came to be known as the Singing Revolution.[4] In 1991, when Communist rule of the Soviet Union collapsed, Estonia’s independence was officially recognized along with the other Baltic republics. Estonia was admitted into the United Nations that year, and its new constitution was ratified in June 1992. The nation began developing its economy, notable for its telecommunication, electronics and energy sectors, while adopting free market policies and engaging in international trade over the next decade. It joined NATO and the European Union in 2004 and continues to be involved on the international stage. Estonia also adheres to the Council of Europe’s European Convention on Human Rights.

Officially the Republic of Estonia, the nation is a parliamentary republic with executive, legislative and judicial branches.[5] The president, indirectly elected by the parliament, serves as chief of state, holding certain appointment and ratification powers while also representing Estonia in international affairs. The prime minister is head of government and is appointed by the president and approved by the parliament. Also known as the Riigikogu, the parliament is unicameral and consists of 101 seats; members are elected by proportional representative vote. The Estonian Supreme Court consists of 19 total justices and contains constitutional, civil, criminal and administrative review chambers. The chief justice is nominated by the president and other justices are nominated by the chief; nominations in both cases are approved by the Riigikogu. The lower court system is made up of circuit appellate courts and those for administrative, city, county and specialized decisions. Estonia is close to 28,000 square miles in size and has a population of about 1.25 million as of 2011; its capital is Tallinn in the north part of the country bordering the Gulf of Finland.

Free Speech

Estonia has enjoyed independence and sovereignty over its regulative ability only relatively recently. A significant part of its modern history was dominated by Soviet rule, its residents subject to the laws that came with it. Control over free expression began to appear in what became the USSR as soon as the Bolsheviks seized power in the region in 1917; censorship was systemized and largely implemented by the Main Administration of Literature and Publishing, which allowed the Soviet leadership to craft the kind of image it desired.[6] By the time Estonia was incorporated into the Soviet Union as the Estonian Soviet Socialist Republic, the censorship system was operating in full effect and left very little room for individuals to express ideas that did not fall in line with the principles of the USSR in any sort of a public way.

Freedom of expression is guaranteed under Section 45 of the Constitution of the Republic of Estonia; general exception is left for laws to be enacted limiting this freedom in necessary circumstances.[7] While there have not been many prominent cases where the limits of this right have been tested, evidence of Estonian protests and strikes that have been allowed to run their course indicates that public expression of ideas has not drawn any major governmental restriction.

There were reports in 2012 of Estonian Doctors Union members holding a strike in Tallinn to petition national health officials for pay increases; debate ensued on different sides of the issue.[8] The strike went on for about a month before an agreement was reached between the union and health officials.[9] The protest was able to begin and come to conclusion over the several weeks it lasted without being shut down by the Estonian government. In 2017, protestors reportedly gathered in Tallinn in opposition to the Rail Baltic project that had plans to construct a line from the capital city to Pärnu in the southwest part of the country.[10] Those in attendance were able to freely organize and spread their message for the length of the gathering without government intervention.

There have been controls of protests that became riotous, indicating that any organization of individuals to promote a message must be kept orderly and peaceful to avoid entanglements with law enforcement. In 2007, there were reports of unrest breaking out among protestors opposing the removal of a Soviet-era monument in Tallinn.[11] Protestors were said to have thrown rocks at police who used riot-control devices on the crowd and detained about 100 individuals. The police response addressed the incitement and disruption those gathering brought about; the initial expression of opinion was not met with government control.

As of 2016, Estonia’s penal code includes a section prohibiting the public incitement of hatred, violence or discrimination that endangers the life, health or property of a person.[12] A 2015 report from the European Commission against Racism and Intolerance (ECRI), a Council of Europe body, recommends Estonia amend its penal code with firmer controls on speech promoting hatred or racial superiority, favoring removal of the endangerment provisions to the effect that hatred-inducing speech be criminalized regardless of damage to life, health or property.[13] The report indicates that Estonia does not have a specific problem with the prevalence of hatred-inducing speech, but ECRI has concerns that issues could arise in the future. An Estonian human rights organization references some reports of racial discrimination while noting a lack of official figures on the subject.[14]

The absence of many scenarios whereby speech regulation has been put into practice indicates that Estonians have remained relatively free to vocalize their opinions and even gather in groups to petition. While not much contention has come about regarding these forms of expression, news publications have encountered problems, making the issue of free press somewhat more complex in Estonia.

Free Press

As listed in the Estonian Constitution, freedom to publish and disseminate information and ideas falls under the same constitutional statute that regulates free expression as a whole, without major distinction made between those ideas that are published and those that are communicated verbally or in some other fashion. This is part of Estonia’s same response to its former Soviet oppression that had influence in all ideas and information potentially spread among people. Section 45 of the Estonian Constitution again gives the general guarantee of free expression.

Estonia does have provisions for public broadcasting in an act that gives stipulations on aspects like functions, programming and budgets.[15] This act is directed primarily at regulation of the public broadcast media platform and is not necessarily applicable as a regulation of private outlets and mass media as a whole.

While the constitutional guarantees of free expression are clearly laid out, their interpretations continue to be tested. As evidenced by the case that was eventually tried at the European Court of Human Rights (ECHR) as Delfi AS v. Estonia and decided in 2015, the potential for defamation and personal harm can be a limiting factor.[16] Estonian news outlet Delfi was sued for allowing purportedly defamatory comments directed at a corporate figure to remain online in the comments section of an article it published. After an initial dismissal at the county-court level, a ruling was made against Delfi and upheld through all appeals up to the ECHR which also upheld the ruling. The decision was based on the idea that Delfi was interpreted as the publisher of its readers’ comments because it had ultimate control over their appearance on its website, and that the news outlet should have known that its article might be controversial and have the potential to attract disruptive comments.

There was criticism surrounding the decision from a number of sources, including a law journal and several major media companies, especially in light of high rankings awarded to Estonia on free press indices at the time.[17] Concern arose around the implications this ruling had on liability for news organizations operating on the internet and the potential limitations free expression could face in situations without clear definition.

The ECHR referenced Article 10 of the European Convention on Human Rights when making its decision. The article is similar to the Estonian Constitution’s Section 45 in its clear affirmation of the right of free expression and similarly includes generalized conditions providing for restrictions on the right as needed an applied by law.[18] The basic, foundational way these rights guarantees are laid out leaves room for restriction with the right kind of law, and the true implications cannot be known until sufficient precedent is set through interpretation in the courts.

Estonia’s membership in the European Union adds another factor. While member states operate under their own legal frameworks in many regards, they are still responsible for incorporating directives and adhering to new regulations and decisions of the EU.[19] So while many questions about individual rights and systems for enabling free expression may be answered on the national level, the ends may still be very much EU-influenced. Further, the nation’s adherence to the Council of Europe’s European Convention on Human Rights brings yet another governing body into consideration. In the case of the Delfi ruling, both the ECHR’s and the Estonian Supreme Court’s decisions held the same perspective; had they been at odds, implications for what free expression is in Estonia specifically might be different.

While there have not been many high-profile cases like Delfi to examine for precedent on applications of free press in Estonia, there have been other controversies. There were reports in 2017 that the Russian Embassy in Estonia said the nation was being selective in regard to freedom of press when it denied accreditation to members of Russian state media conglomerate Rossiya Segodnya wanting to attend a European Union meeting taking place in the Estonian capital Tallinn.[20] Estonian officials reportedly said they reserve the right to choose whether or not to accredit certain media representatives and that the nation was in full accordance with EU policy in doing so. Several organizations supporting human rights, including the Council of Europe, criticized the nation’s decision.[21] The Estonian officials said they were in line with recommendations from the Council itself in their efforts to limit the dissemination of inaccurate and unreliable information.

An academic paper questioning the existence and applications of journalism ethics in the modern era of independent Estonia contends that the nation’s lack of specific press laws and sudden transition from highly-censored to largely-unregulated freedom of expression by the government left news outlets to regulate themselves.[22] The Estonian Newspaper Association (ENA), for example, created the Estonian Press Council (EPC) to protect press freedoms while ensuring news organizations adhered to journalistic ethical standards by examining media-directed complaints. Eventually, over concern that the EPC’s opinions on complaints were detrimental to the image of ENA members, the ENA set up a new press council that included one of the organization’s former managing directors, and its member outlets stopped publishing EPC judgements. The kind of self-regulation that has occurred in the media sphere in Estonia’s recent independent history has apparently left free press in a kind of de-facto state of existence. The Delfi case came years after the establishment of the EPC and seems to represent the government’s somewhat sporadic and isolated interpretation of free expression principles only when a case arises.

Critical Comparison

Estonia and the United States come from rather different historical backgrounds, and the history of each likely served as a large influencer in the ways they each formed and now operate in the modern era. The United States has existed as an independent nation since the late 18th century, having had over 200 years to develop its legal framework and societal ethics. While the First Amendment to the U.S. Constitution clearly guaranteed, among other rights, citizens’ inalienable rights to freedom of speech and open expression in addition to freedom of publication and distribution of ideas from the moment it was ratified, it did not have much opportunity for interpretation by the U.S. Supreme Court until the early 20th century with cases Gitlow v. New York[23] and Schenck v. United States.[24]

The Schenck case examined free expression in regard to the U.S. Espionage Act, and in the court’s unanimous decision, Justice Oliver Wendell Holmes Jr. authored what became known as the clear and present danger test. This test helped to decide if an instance of speech might cause enough substantial harm that it could be justifiably limited. In Schenck’s case, the court essentially found that his speech met this test, and it was limited. Gitlow, a similar case decided a few years later, saw Justice Holmes dissent, joined by Justice Louis D. Brandeis, asserting that Gitlow’s speech had not met the limitation requirements of the clear and present danger test. Gitlow lost in this case, but Holmes’ dissent served as a factor in establishing a precedent of free-expression recognition that continued to develop over the 20th century. First Amendment freedoms have become more and more expansive as evidenced by court opinions from Gitlow onward, exceptions for limitation only being made in the most necessary of circumstances. The trend continued to the point that public criticism was shown to be protected and accusations of libel dismissed in New York Times v. Sullivan[25] while blatant lies about military honors received were shown protection in United States v. Alvarez.[26] The United States has had years of cases setting precedent that reinforces the extent to which citizens can exercise their free expression.

Estonia, in its modern iteration, does not have the benefit of years of cases and rulings to examine for definition of the extent permitted for free expression. In some ways the nation is similar to the United States 100 years ago, just starting to build its repository of legal precedent on the issue. The Delfi case could be compared in some regards to Gitlow in the sense that it has the potential to serve as a landmark case early in Estonia’s modern history. A good deal of the difference between the two nations arises in the sense that that Estonia is in some ways still determining its legal framework as it goes. Times are different than they were a century ago, however, and Estonia’s place in the world is complicated by the existence of the European Union and the Council of Europe, each from which it takes certain directives, regulations and precedents, as well as the existence of many other politically developed countries with legal systems and precedents of their own. Estonia does not have to develop its systems all on its own. There exists a good deal of foundation to reference around the principles of free expression; the specifics are what have yet to be fully formulated.

Conclusion

Estonia comes from a somewhat disjointed and troubled past and has just recently been afforded the opportunity for stability and order with its independence. It established a strong basis around individual liberties and the fundamentals of free expression, standing against many of the oppressions it faced under Soviet rule, and has found success and prosperity in its several-decades existence as an independent country on the international stage. Free expression has been a guarantee to its citizens and has been practiced without much contention over its brief modern history. Questions are arising around the application of this guarantee, especially in the internet age and as the nation is in many ways still inventing and developing itself. Modern Estonia does not have the same history and length of existence as the United States, so in some ways the United States can be said to be more clearly defined in its freedoms. Estonia does seem to have its foundations in the ideas of individual liberty and free expression, and as the nation and its legal framework continue to develop, time will reveal the eventual effect this has on the livelihoods of its citizens.

References

1 Reporters without Borders. Estonia. https://rsf.org/en/estonia
2 Estonia. (2017). Funk &amp Wagnalls New World Encyclopedia, 1p. 1.
3 Bertriko, A. (2004). Estonia : Identity and Independence. Amsterdam: Brill Academic Publishers.
4 Estonia. (2011). Background Notes on Countries of the World: Republic of Estonia. 1.
5 Central Intelligence Agency. The World Factbook. https://www.cia.gov/library/publications/the-world-factbook/geos/en.html
6 Sherry, S. (2015). The Soviet Censorship System. Discourses of Regulation and Resistance: Censoring Translation in the the Stalin and Khrushchev Soviet Era (pp. 45-64). Edinburgh University Press. https://www.jstor.org/stable/10.3366/j.ctt16r0h9j.7
7 Republic of Estonia. Constitution of the Republic of Estonia. https://president.ee/en/republic-of-estonia/the-constitution
8 (2012, Oct 1). Estonian doctors launch strike over pay. Agence France-Presse. http://infoweb.newsbank.com/resources/doc/nb/news/141AAB924665F080?p=WORLDNEWS
9 (2012, Oct 29). ESTONIAN HEALTHCARE WORKERS STRIKE ENDS. ELTA News Agency (Vilnius, Lithuania). http://infoweb.newsbank.com/resources/doc/nb/news/142407D16DFD0A70?p=WORLDNEWS
10 ERR News. Protests in Tallinn against current shape of Rail Baltic project. https://news.err.ee/591437/protests-in-tallinn-against-current-shape-of-rail-baltic-project
11 Press, A. (2007, Apr 28). Cultures clash in Estonia – Ethnic Russians protest removal of Soviet memorial. Houston Chronicle (TX), p. 24. http://infoweb.newsbank.com/resources/doc/nb/news/118CFF33DE4E25F0?p=WORLDNEWS
12 Riigi Teataja. Penal Code. https://www.riigiteataja.ee/en/eli/523122015005/consolide
13 European Commission against Racism and Intolerance. ECRI Report on Estonia. https://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Estonia/EST-CbC-V-2015-036-ENG.pdf
14 Estonian Human Rights Centre. Racism, Racial Discrimination and Migration in Estonia 2015-2016. https://humanrights.ee/en/2017/07/rassism-rassiline-diskrimineerimine-ja-migratsioon-eestis-2015-2016
15 Riigi Teataja. Estonian Public Broadcasting Act. https://www.riigiteataja.ee/en/eli/509012014002/consolide
16 Global Freedom of Expression, Columbia University. Delfi AS v. Estonia. https://globalfreedomofexpression.columbia.edu/cases/delfi-as-v-estonia
17 Mart Susi. (2014). Delfi AS v. Estonia. The American Journal of International Law, 108(2), 295-302. doi:10.5305/amerjintelaw.108.2.0295
18 European Court of Human Rights. European Convention on Human Rights. https://www.echr.coe.int/Documents/Convention_ENG.pdf
19 European Commission. Applying EU Law. https://ec.europa.eu/info/law/law-making-process/applying-eu-law_en
20 ERR News. Russian embassy: Freedom of speech in Estonia ‘selective.’ https://news.err.ee/615806/russian-embassy-freedom-of-speech-in-estonia-selective
21 ERR News. Russian complaint brings accusations of censorship for Estonia. https://news.err.ee/616330/russian-complaint-brings-accusations-of-censorship-for-estonia
22 Lauk, E. e. (2008). Freedom for the media? Issues of journalism ethics in Estonia. Informacijos Mokslai / Information Sciences, 4759-65.
23 Gitlow v. People of State of New York, 268 U.S. 652 (1925).
24 Schenck v. United States, 249 U.S. 47 (1919).
25 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
26 U.S. v. Alvarez, 567 U.S. 709 (2012).

This essay was last updated April 30, 2018.

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