“The question facing Estonia is whether its independence can co-exist with Russian strength. The answer to this question likely depends on Estonia’s reconciling itself to the paradox that, while it can be independent of Russia, it can never be free of Russia. An important step in this reconciliation will be the realization on the part of Estonia that it cannot be restored to its relative ethnic purity of 1940. Rather, Estonia must move beyond ethnic nationalism and pursue a civic-based model of the nation state which will foster a shared identity and loyalty between its ethnic Estonian and ethnic Russian populations. Quite simply, restoration does not require exclusion.”

Source: CREATING THE ETHNIC ELECTORATE THROUGH LEGAL RESTORATIONISM: CITIZENSHIP RIGHTS IN ESTONIA Richard C. Visek, Harvard International Law Journal Spring, 1997

In reality, the media and most commentators have got it wrong. The EU has worked exactly how it is supposed to work, and having flashier or more popular (or populist) persons chosen would have been the exception, not the way things worked out. The fact is that Lisbon treaty did not change all that much, it was evolutinary, rather than revolutionary development. Even when it was still called the Constitutional Treaty, it was never intended to usher in a new era of a different EU. Things that needed fixing were fixed and fine-tuned and the world will not be much different from 1 December 2009. With Lisbon there has been an added layer to the already existing foundation, nothing more.

I think that van Rompuy and Lady Ashton are perfect because they are not so well known. The EU is not about simplistic populist slogans or strong figureheads, but it is about concensus and being able to make the multi-layered and multi-level governance system work. And for that those two are good candidates.

The EU is not, and does not work like a state. That’s why the EU’s “president” (actually the President of the European Council) and “foreign minister” (actually the High Representative of the Union for Foreign Affairs and Security Policy) are not like presidents or foreign ministers of countries. It is also why the European Parliament is not like state parliament or why decision-making process is completely different of that of a state. However, this complexity is not easy to explain.

We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.  John Stuart Mill, On Liberty, 1859

In the memokraat blog, the Short Guide to Catching Trolls (Lühike trolliküti käsiraamat ehk ettepanekud online diskussioonitehnoloogia arendamiseks Eestis) was posted discussing the issue of trolling at the reader comment sections of Estonian online news media sites. I briefly participated in the debate, but now will provide here an overview of some issues and questions that I have been thinking about since then.

1. Defining the troll. The Guide defines troll as someone who posts insulting comments in an online environment with the purpose of provoking others and disturb the discussion. What constitutes an insult, provocation or disturbance is subjective to a certain level and depends on the cultural and social background of a person. My comments for the Guide as posted in the comment thread could be considered trolling as at least some people thought that part of my arguments were arrogant (when I suggested that people who are so thin-skinned that they could not tolerate hostile commentary should not read it), the style I write and express my opinions is usually a little provocational and some people might think that it disturbed the discussion. Thus in a wide reading of the definition I am a troll and so is nearly anyone who does not conform to a certain subjective criteria defined by the owner of the site. The banning of such trolls as myself results in discussions that are perhaps non-insulting and uncontroversial, but at the same time also rather valueless in terms of expanding the scope of discussion and bringing in alternative views.

2. Defining the problems? The trollhunters claim that the problems are caused by the technology used for commenting at Estonian online news sites. They claim the technology used is to blame for the exclusion of certain other people (who in a bizarre twist are claimed to be unable to freely use their freedom of speech because they are afraid of others also using it but critically), that this leads to radicalisation of public opinion and intolerance and distorts public opinion. All these claims lack evidence, studies or any research: we are expected to accept these premises as self-evident, when they are actually not.

The biggest unsupported assumption the authors of the Guide make* is that the root of all evil is anonymous commenting, which may or may not be the case.

3. Freedom of speech in an online setting. It is true that freedom of speech is not absolute and the exercise of it also requires responsibility for one’s opinions. However, for acts that bring criminal liability there already is a possibility to identify almost anyone online so the anonymity is only superficial. Thus it is possible at least in theory to make people accountable for their words also now.

50 years ago internet did not exist and therefore the human rights standards we have need to be adopted to the internet era. Certain principles remain the same, but the internet might change the content of certain rights subtantially, including freedom of speech. Offline analogies do not always work in the global unregulated internet with low barriers to entry.

4. Self-regulation is not always best when dealing with human rights issues. The trollhunters state that the least they want is state intervention or regulation. They propose a system of self-regulation, whereby the parties who control the commentary space make an agreement which is then adopted and implemented. In my mind it is dangerous when private entities make deals that involve limits to freedom of speech, because questions of accountability and transparency rise. I also believe that this might be even worse than state regulation, because the state is much more bound by international human rights obligations. So in cases that involve human rights I think it is preferential to have state regulation, rather than allow for private parties who control substantial public discussion space to make their own agreements to limit certain aspects of online activities. In many many spheres self-regulation is possible and works very well, but I am not sure if this is it.

—

In general terms there is another fundamental point why I think any regulation of online commentary space is not beneficial. Net neutrality means that content providers should not restrict specific parts of the internet depending on subjective criteria. The internet has flourished partly because of the freedom it provides and the abscence of walled gardens. What the trollhunters want to create is a walled garden, admittedly with very low walls, but still access to commenting would become more limited.

I also disagree that this discussion should be framed in terms of media freedom. Online commentaries do not constitute media or journalism in my opinion, it is a separate issue and therefore references to media and press freedom indexes do not really matter. The public debate in the matter has also included mostly people from the media sphere and not other areas who have framed the debate in their own terms.

Short rebuttal of the trollhunters critique of anonymity online:

1. The whistle-blower effect. The trollhunters claim that an anonymous tip option might be sufficient cannot be accepted because it is media-centric and would require an interested journalist to pursue the topic and lack of self-censorship in the media. Anonymous hints cannot replace anonymous commentary, they are different things. The trollhunters agree that certain levels of anonymity might be necessary for informing the public, I say it is essential.

2. Balance between insulting and constructive comments. This depends on the topic, but in most cases I would say based on my experience that insulting comments do not prevail over more insightful ones. Again, there are no studies made or statistical data available other than Delfi claiming that insulting comments are only a fraction of the total body of comments. Even if the majority of comments would bring nothing to the debate, is it worth not having the few that do?

3. Censorship. The trollhunters here refer to the right of newspaper editors to choose what to publish. The commentary space is not in my understanding part of the newspaper and can function without it. The fact that newspapers have always edited their stories have been due to physical lack of room in the paper and the need to provide a concentrated overview. The internet does not have these physical limits and there is nothing lost with adding to concentrated overviews and officially sanctioned opinions other stuff as well. The claims of this leading to mob censorship are speculation.

4. Impact of insulting anonymous comments. It is true that some people are more sensitive to criticism and insults than others, but again, there is no need to censor everyone because of this. Some views are controversial and people get offended. If I want to claim that there is no god, then this is offends people and I will be branded a troll. I believe that online commentary space must allow for expression of those less conformist views, which are not published by newspapers. I disagree that it is right to take away the freedom of expression from one group for the benefit of another.

5. Strength or importance of message. See above. I still refuse to accept the approach that it is somehow justified to prefer one group of people to another in terms of who may or may not express their views.

6. Vox populi, vox dei. I agree with the trollhunters that there needs to be no correlation between general public opinion and views expressed in comments, but I think it also depends on the topic. Likewise, I have seen no statistics which confirm that people believe that views expressed in online commentaries represent the general views in the society.

7. Video game violence argument. The idea is that people can insult others virtually so they will not do it offline. I think there is no correlation here, but no studies have been provided saying one thing or the other. The anger people have is in my own opinion a consequence, and not a cause of the processes in the society.

8. Moderated comments loses valuable discussion. This is subjective. If in some specialist finance related forum it works and likeminded people can express themselves better and feel good about it then fine. I do not think that discussion space for general public should work the same way (the danger to stifling of dissent and danger of conformism).

9. Too many comments to moderate. I think the notice and take-down system works pretty well.

10. Topic already discussed. Nothing to say here. Everything should be open for discussion.

11. Notice and take-down. Probably the system could be improved, I think it is disproportional to ban all anonymous comments due to imperfections of the notice and take-down system.

12. Turn to police. In case there is no real threat police should not be involved. If a person says to another that go jump off a cliff then this obviously is not a real threat. Again, in those cases where there is real threat police should be involved. It does not mean that all anonymous comments need to be banned because police does not do their work.

13. Economic factor. I am not sure if the commenting option is ecnomically beneficial or not, but of course that should not be the prevailing argument for or against limiting free speech online.

14. Freedom of speech is why comments are kept. Not a convincing argument, I agree. But I do think that once they have been introduced, stopping the ability to comment wold be problematic as it has almost become a service of general public interest.

15. Historical perspectives. There has been no time like this and therefore parallels with the past might or might not provide insight into dealing with the issue at hand.

* As pointed out by Daniel, I have put words in the mouths of the trollhunters that they think that anonymous commenting is the root of all evil. The trollhunter guide does not state this and it was an exaggeration on my part. However, I still think that the general tone of the Guide seems to connect anonymous expression with the existence of insulting and derogatory comments. I guess it would be fair to say that the authors consider it as a not an insignificant part of all evil

The movement has three ‘principles’:

• The main principle of democracy is “one person, one vote”
• A child is a citizen
• Therefore a child must have a right to vote

One can agree with the first and the second, but not the third. Not even the proponents of the idea want to do that and have toddlers selecting parliament members, they want to give extra votes to the parents or guardians of those children. That is a terrible idea.

Giving parents extra votes for having children is contrary to the principle of direct elections. In a democratic country a person can take part in the “government of his country, directly or through freely chosen representatives (my emphasis).” The idea of direct elections means that we can choose our representatives directly and freely. A child is unable to freely choose his or her representatives, which means that the principle of direct elections is not followed.

Why is the principle of direct elections so important? Any delegation of the right to vote to someone else is incompatible with democratic minimum standards as it can easily lead to disenfranchising parts of the society. If we give children the right of indirect voting, then this means that we could also perhaps delegate the votes of the mentally ill to their caretakers, prisoners to their families or any other group who cannot vote, but is still a citizen. None of these would even be freely chosen representatives, i.e. children could not choose which wise adult they give their vote to, it has to be the parent or guardian.

In my opinion the fact that such a movement has received quite a substantial support, even by some well-respected journalists, speaks volumes about the weakness of Estonian democracy.

The social consequences would be significant. Spouses disputing who gets to decide how to vote, children disawoving their parent for voting ‘for’ them. The childless, women who are no longer able to give birth and homosexual families are relegated to second class status, where more and more will be taken from them to support the ‘natural’ family. This kind of Estonia I do not want any part of.

Instead of giving more votes to young people, it actually takes them away from them. People tend to marry and have children later, in their late 20s and 30s, which means that the voice of the people in the age range of 18-24 is even lower as they probably do not have children yet.

Of course, the whole idea of having more children in a global world faced with serious overpopulation means that by trying to ensure the continuity of the Estonian nationality, we slightly diminish the survival chances of the entire planet. If all nations of the world adopted having more children of their nationality as the Kantian categorical imperative “act only according to that maxim whereby you can at the same time will that it should become a universal law” we would end up with rapidly overpopulating the globe, making it a much much worse place to live, or potentially destroy humanity altogether. I would not wish for my children and children’s children the fate of constant war over rapidly diminishing natural resources and failing ecosystem. This kind of ‘selfish’ national thinking is dangerous.

I believe Estonia and Estonians have a bright future ahead if we are open and welcoming others among ourselves and our culture.

P.S. The campaign website also includes the homophobic statement that “men and women love each other, and out of that love children are born”, implying that two men or two women could not possibly love each other and found a family.

Annex:

Here is a short overview of the international obligations of Estonia in terms of electoral law.

The Universal Declaration of Human Rights, the 60th anniversary of which was recently celebrated, should be seen as one of the cornerstones of the world order today in terms of democracy and human rights. Article 21 states, that:

1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right of equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

The same principle is reiterated within Article 25 of the International Covenant on Civil and Political Rights, which is in principle obligatory for all states to follow:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Article 3 of Protocol 1 of the European Convention of Human Rights, which is binding for Estonia, states:

Article 3 – Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

There is also the Declaration on Free and Fair Elections of the Inter-Parliamentary Council, which spells out the direct elections principle.

Go to www.berlininriga.com for more information about the events.

The current doctrine of international law does not allow for independence for these regions. This principle was breached in the case of Kosovo, and this has also fueled Russian resolve to attack Georgia and try to take South Ossetia and Abkhasia. It is clear that the agressor in Georgia’s case is Russia which has embarked on a development route, which can be described as a neo-Fascism with neo-Soviet crust. However, things should not have been made so easy for them by allowing Kosovo to become independent.

In the EU the role of the Member States is diminishing, there are common values, common principles regarding rule of law, democracy, human rights, etc, which are respected in all of these states. Thus is does not matter much where you live or which nationality you are. The same situation must be strived for in other countries with conflict situations as well. The international law and principles should be strong enough to guarantee a minimal level of protection for all human beings, regardless of where they live.

If we were to accept the example of Kosovo and agree now also to the “right” of South Ossetians to become independent (and merge with Russia), there will be no end for conflicts, both internal and full wars. The world has become a much more dangerous place and it is the job for the community of democratic countries to act decisively to guarantee the peace. Otherwise who knows which country will be next…

One of the projects I have undertaken is to give expert advice on human rights as one of the legal experts for the EU’s Fundamental Rights Agency. One of the first tasks for our team was to complete a Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Estonia (download PDF) which was one of the basis for FRA’s comparative report “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States Part I – Legal Analysis” (full report in PDF, press release).

In the fall, the Human Rights Centre will publish its own report on Human Rights in Estonia in 2007.

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents.  We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true.  See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice:  What I tell you three times is true.”).  In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.  To the contrary, as noted in Part III, many of those assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source.  And as we have also noted, Parhat has made a credible argument that — at least for some of the assertions — the common source is the Chinese government, which may be less than objective with respect to the Uighurs.  Other assertions in the documents may ultimately rely on interview reports (not provided to the Tribunal) of Uighur detainees, who may have had no first-hand knowledge and whose speculations may have been transformed into certainties in the course of being repeated by report writers. 

Hopefully this is a step further in the direction of closing down the Guanatnamo Bay facility, or at least stop its illegal status of no-law zone. This is the 21st century and democratic countries should no better than to tolerate this abuse of basic principles of the rule of law.

Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.”

The most important paragraph:

Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. 

The smackdown:

The Government’s formal sovereignty-based test raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. /—/  And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. 

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.  Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.”  Murphy v. Ramsey, 114 U. S. 15, 44 (1885).  Abstaining from questions involving formal sovereignty and territorial governance is one thing.  To hold the political branches have the power to switch the Constitution on or off at will is quite another.

Bush is not happy:

It was a deeply divided court and I strongly agree with those who dissented. We’ll study this opinion to determine whether or not additional legislation may be appropriate.

Kenneth Roth from the Human Rights Watch praises the judgment:

The Supreme Court decision has stripped Guantanamo of its reason for being: a law-free zone where prisoners can’t challenge their detention. The ruling is not only a landmark victory for justice, it’s a big step toward establishing a smarter, more effective counterterrorism policy.

Barack Obama also issued a statement:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.