Reflections on the Icelandic Modern Media Initiative
The Icelandic Modern Media Initiative (‘IMMI’), unanimously approved by the Icelandic Parliament on the 16th June 2010, aims to make Iceland a ‘safe haven’ for the world’s media, investigative journalists, and whistleblowers.[1] The initiative is of particular interest to the Mediadem project, in that it will not only identify some of the world’s most media friendly legal regulations, it should also lay bare some of the technical and policy challenges that underpin any attempt to safeguard freedom of expression and access to information in today’s networked, and increasingly international, communications environment.
One initial observation is that the reference to the ‘media’ in the IMMI’s title should be understood as encompassing all means of communication rather than a limited set of professional media such as commercial newspapers or television services. This is because the ambitions for the programme extend beyond supporting traditional media to assisting journalists, organisations and individuals, whatever their affiliation or none, who wish to publish information or opinions in whatever form. Indeed, Julian Assange, editor of the online whistleblower site ‘Wikileaks’, has noted that the mainstream media can be too tied to governments and day-to-day information sources to act independently, though he accepts that the mainstream media can also offer credibility and direct public attention to information from third party sources.[2] In democratic societies the mainstream media have never been a sufficient source of information and the internet now not only facilitates access to alternative, previously inaccessible, sources, it also enables individuals to actively participate in transmitting, as well as receiving, information – what Karol Jakubowicz has termed ‘the right to public expression’.[3] The main focus of the IMMI is thus on promoting freedom of information and expression generally, rather than carving out specific guarantees or protections for the traditional media, the boundaries of which, in any event, are becoming increasingly difficult to demarcate.
Why has Iceland adopted the IMMI?
Arguably there are two main reasons why Iceland has decided to review its existing legislative framework at this time. Firstly, events surrounding the financial crisis in 2008 highlighted how domestic legislation could be deployed to block the release of information of public importance. Without access to such information, Icelanders could not properly understand the financial situation in which they found themselves or make appropriate personal and political decisions. The project thus has at its heart a genuine concern to promote effective democratic government.
One of Iceland’s major banks, Kaupthing, relied on legislation designed to protect the confidentiality of customer information held by financial institutions to block media coverage of substantial loans it had made to companies and individuals not long before the crisis hit. Of these, the largest borrowers were among the bank’s biggest shareholders.[4] These loans were detailed in a risk assessment document passed to Wikileaks, which proceeded to publish the information on its website. Kaupthing not only took direct action to prevent coverage of the loans by the Icelandic media but also threatened legal proceedings against Wikileaks if it did not remove the information from its site. The Wikileaks publication, however, rendered pointless further attempts by the bank to keep the beneficiaries of the loans secret and Kaupthing, crippled with debt, was ultimately taken over by the State.
Client-bank confidentiality undoubtedly underpins the modern banking system and most individuals would consider online publication of their bank details to be a flagrant infringement of their privacy; but there are instances where even compelling individual or commercial interests such as this should arguably be overriden. It may, for instance, be necessary to breach confidentiality in order to restore stolen property, such as Nazi gold, to its rightful owner or to provide information on events of major public importance, as in this case – the Icelanders, after all, are personally paying for their banks’ failures. The actions of Kaupthing in seeking to suppress information on its loans thus brought to light a series of important policy questions: when, if at all, should whistleblowers be protected from legal liability; under what circumstances should a recipient of information be required to reveal details of their source; when, if at all, is prior restraint of publication acceptable; and on what basis can those who run websites located outside a particular country be held legally liable for material that is accessed within it?
All of these questions will be considered by the IMMI over the forthcoming year, along with the need for measures to protect intermediaries, such as internet service providers; to update the time limits for commencing legal actions, particularly in relation to online publications; to provide protection from the abuse of legal procedures; to up-date freedom of information legislation; and to prevent the enforcement of foreign judgments where a similar level of protection for expression has not been applied. The relevance of the latter issue was recently highlighted by the addition to existing state measures in the US of federal legislation designed to prevent ‘libel tourism’, a term that refers to the strategic pursuit of libel actions in countries such as the UK that afford reputation a high level of protection, even though the claimant’s link with that country is limited.[5]
The second reason for the initiative is commercial. A communications-friendly legal environment could encourage media and communications companies to relocate their activities and/or assets to Iceland and act as a spur to the development of information and communications industries, such as telecommunications, software publishing and computer programming services, within the country. The commitment to engage with new technological developments is evident in two final issues subsequently added to the IMMI programme: how best to ensure the operational security of data centres located in Iceland and the role of law in addressing cloud computing, data havens and internet communications more generally, the latter issues to be considered at an international conference in Iceland.
But as those putting forward the initiative note ‘[n]ot all the benefits of this proposal can be counted in kronas: like the Reagan-Gorbachev summit, the indirect effects of weaving together the interests of the Icelandic people with the interests of the world media should not be underestimated. The proposal … would make Iceland unique in the global discussion and would engender the goodwill and respect of other nations.’[6]
Is the IMMI unique?
Although the IMMI sets out an extensive programme for reform it cannot strictly be classed as ‘unique’. Another small country that, early on, successfully positioned itself as an international communications hub, Luxembourg, blazed a similar trail in 2004. There has to date been little reference to the Luxembourg initiative, even though it was in some ways even more ambitious than the Icelandic proposal. For example, Luxembourg sought to integrate a whole raft of media-friendly measures into one over-arching piece of legislation, the 2004 law on freedom of expression in the media (the ‘FEM’), whereas the IMMI envisages that at least 13 laws will need to be modified to address the various issues raised.[7]
Substantively, the IMMI and the Luxembourg law are likely to cover a lot of similar ground. The FEM establishes a general right to freedom of expression, comprising the right to receive and seek information, to communicate information to the public in a freely chosen manner, and to make comments and express critical opinions. It then addresses a number of substantive issues of importance to the media, such as the protection of sources, privacy, defamation and the protection of minors. These provisions operate on two levels. On the one hand, they establish specific immunities for the press, for example, from the duty to reveal sources or, in the context of defamation, where there has been responsible investigative journalism. On the other, they expressly enumerate the circumstances in which legal liability may be engaged: these circumstances are carefully restricted to ensure a broad measure of freedom and certainty for the press. Thus, in the context of sources, the general right to maintain a source’s anonymity can be overridden only where there are proceedings involving crimes against the person, drug trafficking, money laundering, terrorism or attacks on state security. The FEM also establishes important procedural protections, notably a prescription period of three months from first publication, which, in the case of online publications is held to occur when the publication is first put at the disposition of the public or when it became accessible to the public.
Where the FEM and the IMMI are likely to part company is in relation to their sphere of operation. Although the FEM takes a broad and dynamic approach to what constitutes the media, defined as ‘all technical means, tangible or intangible, employed with a view to publication’ (art. 3), the legislation’s focus is on the traditional, professional press. Thus, the provisions on source protection apply to ‘journalists’, defined as those who carry out reporting activities as their principal activity or on a regular basis for significant financial remuneration, freelance or for an editor. They do not, therefore, offer protection to your average amateur blogger. Similarly, the protection from defamation for those who engage in responsible journalism on matters of public interest applies to those who put together the information on behalf of an editor, the editor him or herself, and those who distribute the material, though this latter category could be interpreted in a broad way to cover non-professional communicators. The IMMI’s intention to offer protection to this latter category is one of its distinctive features, reflecting the changes to the media environment that have taken place in the short time since the FEM was drafted and adopted. Similarly, the IMMI’s concern to promote access to information more generally is likely to lead it to address freedom of information and whistleblowing provisions that are not contained in the FEM. The IMMI will also be considering a wider range of procedural impediments to public communication and the possibility of legal modifications to address these concerns, such as ‘anti-SLAPP’ measures of a type adopted in the US to prevent the strategic use of legal rules by claimants with deep pockets to chill legitimate expression.[8]
On the other hand, the FEM’s preoccupation with the mainstream, professional media has led to the inclusion of measures that are not currently listed in the IMMI. Thus, the FEM establishes specific protections for journalists in relation to their editors – for example, journalists are given the right to prevent the publication of material under their name that has been substantively modified without their permission. In addition to recognising rights, the FEM imposes certain duties on the professional press of a type one would normally expect to see in self-regulatory codes – the press has a duty to be accurate, truthful and to check facts carefully, to distinguish between facts and commentary, and to provide a right of reply. The FEM also addresses an issue that is often neglected, namely transparency of media ownership, in that it requires those who have significant direct or indirect interests in newspapers and other publications to disclose these.
These observations suggest not only that the FEM may now need to be reviewed in the light of social and technological developments but that a number of concerns relating to the traditional media, particularly the relationship between editor and journalist, could equally be included within the remit of the IMMI.
Wider ramifications of the IMMI: viral legislation?
As the above discussion indicates, it is the IMMI’s focus on amateur as well as professional communications and on the implications of cross-border transmission that renders it a truly ‘modern’ initiative. The project will undoubtedly lead to significant amendments to the present Icelandic media law but what impact will it have outside Iceland’s border?
As a number of commentators have pointed out, safe-haven provisions can offer only limited legal protection.[9] Countries such as England and Australia, for example, consider ‘publication’ to take place for the purposes of tortious liability where material is downloaded or accessed rather than where it is initially posted.[10] A defamation action may consequently be raised in an English court in relation to material posted on an Icelandic internet site as long as it is accessed from a computer located in England. If Iceland does adopt legislation barring Icelandic courts from enforcing foreign judgements that do not conform to Icelandic free speech guarantees, this will undoubtedly assist individuals and organisations that locate their assets and personnel in Iceland. Iceland is a member of EFTA and has applied to join the EU so that, for European individuals and companies, relocation will, from a legal perspective, be relatively easy. Moreover, relocation should be even easier if Iceland moves to allow the registration of ‘virtual companies’ that have no physical offices or personnel located within the country, as Vermont has done in the USA.[11] But, paradoxically, it is the physical relocation of assets and personnel to Iceland that will be needed to evade the effect of foreign judgements. Undoubtedly, some organisations and individuals will be tempted by the legal and technical, though possibly not financial, environment to relocate to Iceland, but major media companies are likely to wish to retain offices and personnel in their primary target countries.
Despite these limitations, the IMMI confirms that no country is a ‘media island’ and when one state takes the extreme measure of passing legislation to block the enforcement of foreign judgements on free speech grounds, then a reappraisal of the targeted domestic law is likely to be in order. The impact of such initiatives can already be seen in the UK, which is actively reconsidering its present defamation rules in the light of the US ‘libel tourism’ legislation, noted above.[12] The IMMI may consequently have a wider ‘viral’ or ripple effect as other countries adapt their laws to follow the ‘best practice’ developed by Iceland.
But there are other interests that compete with freedom of expression for protection and different states afford these interests varying degrees of weight. These varied appraisals are not necessarily illegitimate and reflect cultural, philosophical and historical differences. The US, for example, affords hate speech greater protection than many European countries, including Iceland, and even within Europe there are major differences in the level of protection afforded, say, to personal privacy.[13] The 2006 US Appeal Court ruling in the Yahoo case has left considerable uncertainty as to when US courts will refuse to enforce foreign rulings against US companies on First Amendment grounds but even if US courts were to afford extensive First Amendment protection in this context this would not, of itself, be a sufficient reason for the foreign country to change its laws.[14] Nor will the IMMI make it any easier for European countries to agree common rules on such contentious issues. What the IMMI will do, however, is encourage countries to go back to the drawing board and consider whether their rules relating to access to information and freedom of expression require ‘modernisation’ to adapt to both the potential and the challenges of our modern media environment.
Rachael Craufurd Smith, Research team of the University of Edinburgh, SCRIPT Centre
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[1] See commentary at http://www.immi.is/?l=en.
[2] Julian Assange, ‘WikiLeaks editor: why I’m excited about Iceland’s plans for journalism:
Iceland’s ‘Modern Media Initiative’ could turn it into something new in the world – a journalism haven’,
posted Monday 15 February 2010, at: http://www.guardian.co.uk/media/organgrinder//2010/feb/15/wikileaks-editor-excited-Iceland-journalism.
[3] Karl Jakubowicz, ‘The Right to Public Information: A Modest Proposal for an Important Human Right’, Open Society Media Program 2010.
[4] Icelandic Act on financial undertakings, no. 161/2002. These events are discussed in Herdis Sigurgisdottir, ‘Iceland court lifts gag order after public outrage’, Associated Press, August 4, 2009, available at: http://wikileaks.org/wiki/Category:Iceland.
[5] The Securing the Protection of our Enduring and Established Constitutional Heritage Act or ‘Speech Act’, H.R. 2765 (2010), prohibits US courts from enforcing foreign defamation judgements where these fail to comply with US First Amendment or similar state constitutional protections.
[6] IMMI, proposal for a parliamentary resolution, available at: http://immi.is/?l=en&p=vision.
[7] Loi du 8 juin 2004 sur la liberté d’expression dans les medias, A-No 85 Recueil de Legislation 8 Juin 2004, 1202.
[8] See discussion by Dan Frosch, ‘National anti-SLAPP law under consideration in Congress’, the New York Times, May 31, 2010.
[9] Arthur Bright, ‘Fortress Iceland? Probably Not’, Citizens Media Law Project,
posted February 16th, 2010 at www.citmedialaw.org/blog/2010/fortress-iceland-probably-not.
[10] The case often cited to illustrate this point is the Australian case of Dow Jones and Company Inc v Gutnick (2002) HCA 56; 210 CLR 575; 194 ALR 433; 77 ALJR 255, where Gutnick was allowed to sue for damages for loss of reputation in the Australian state of Victoria caused by the publication of Barrons online, produced by Dow Jones in the United States.
[11] See http://lawlab.org/digital-institutions/vermont-project/.
[12] Mark Sweeney, ‘UK government plans major review of libel law: Ministry of Justice announces draft defamation bill to be put out for consultation and pre-legislative scrutiny in the new year’, The Guardian, 9 July 2010, available at: www.guardian.co.uk.
[13] See, for example, Article 233 a. of the Icelandic Penal Code, which covers ridiculing and insulting, as well as threatening, a person on the grounds of their nationality, skin colour, race, religion or sexual orientation.
[14] See the US Court of Appeals, Ninth Circuit decision Yahoo! Inc., a Delaware Corporation, Plaintiff-appellee, v. La Ligue Contre Le Racisme et L’antisemitisme, a French Association; L’union Des Etudiants Juifs De France, a French Association, 433 F.3d 1199.
