Thursday 13 June 2024

A Further Step to Gender-Sensitive EU Asylum Law: The Case of ‘Westernised Women’


 


Türkan Ertuna Lagrand, Assistant Professor, and Salvo Nicolosi, Senior Assistant Professor, University of Utrecht

Photo credit: Mystslav Chernov, via Wikimedia Commons

 

Gender-based asylum claims have been gaining momentum in EU law. On 11 June 2024, the Court of Justice of the European Union (CJEU) published its most recent judgment in the case of K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21) concerning the interpretation of ‘membership of a particular social group’ under Article 10 (1) (d) of the Qualification Directive with reference to ‘westernised women’ who, because of the identity and lifestyle they have acquired in the host country, namely the Netherlands, fear persecution if they were returned to the home country, namely Iraq. The judgment follows the ruling in WS (C‑621/21) in which the Court last 16 January 2024 recognised that women in a country as a whole may be regarded as belonging to ‘a particular social group’, leading, as analysed here, to the recognition of refugee status.

Following this thread, this post aims to shed some more light on the Court of Justice’s contribution to a more gender-sensitive reading of international refugee law. To this aim, drawing from the judgment in K, L, attention will be paid to the axiological dimension of the concept of ‘equality between women and men’ and its use by the Court for the purposes of constructing the ‘particular social group’ under EU asylum law. A short synopsis of the case will be first provided.

The Factual Background

The judgment is the landing point of a case originating from a reference made on 25 October 2021 by the Tribunal of the Hague. The main proceedings concerned two minor sisters (10 and 12 years old) who left Iraq in 2015 together with their parents who unsuccessfully applied for international protection in the Netherlands. In 2019, the applicants lodged subsequent claims for international protection, which were rejected as manifestly unfounded. On 28 December 2020, they appealed to the referring court in The Hague. At the time of the hearing before the referring court, the applicants had been continuously resident in the Netherlands for over five years and were both still minors. They argued that, due to their long stay in the Netherlands, they have adopted Western norms, values and actual conduct and, because of this, they fear persecution if they were returned to Iraq.

The referring court, therefore, asked the CJEU whether third country nationals who have lived in a Member State for a significant part of their life during which they developed their identity by adopting Western norms, values and actual conduct, may be considered members of a ‘particular social group’ within the meaning of Article 10 (1) (d) of the Qualification Directive, because (applying the definition of ‘particular social group’ in the Directive) they have ‘a common background that cannot be changed’ or characteristics that are ‘so fundamental to identity that a person should not be forced to renounce’ them. (The UN Refugee Convention, as applied in EU law by the EU Directive, defines a ‘refugee’ as someone outside their country of nationality or (if stateless) habitual residence, who is unable or unwilling to avail themself of the protection of that country owing to a well-founded fear of persecution on various grounds, including ‘particular social group’; but unlike the EU Directive, the Convention does not elaborate further on the meaning of the term).

In his Opinion, Advocate General Collins, first of all, rejected the application of the terms “Eastern” and “Western” in the context of moral codes and values as projecting a false dichotomy that constitutes part of a divisive dialogue. He underlined that ‘“the East” and “the West” are vast regions with a multitude of religious traditions, moral codes and values’ making terms such as “a Western lifestyle” or “Westernised women” ‘largely meaningless’. More importantly, by setting the centrality of ‘gender equality’ within EU law, the Advocate General provided a valuable background against which the Court could frame its ratio decidendi.

 

The axiological dimension of gender equality in the Court’s Judgment

In its reasoning, the CJEU reiterates the approach followed in the previous case of WS in which the Court declared the Istanbul Convention and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as being relevant treaties under Article 78 (1) TFEU according to which EU Asylum law, including the Qualification Directive, is to be interpreted. In pursuing such an approach, the Court provides a broad and rights-based interpretation of gender equality, explaining that, in light of Articles 1, 3 and 4 (2) of the Istanbul Convention as well as Articles 3, 5, 7, 10 and 16 of CEDAW, equality between women and men includes the right of every woman to be protected from all forms of gender-based violence, the right not to be forced to marry, to choose whether to adhere to a religion, to hold one’s own political views and to make one’s own life choices, especially in terms of education, career or activities in the public sphere.

While relying on these international law sources, the Court contributes to upholding the axiological dimension of gender equality, as ensuing from Articles 2 and 3 (3) TEU enshrining gender equality as one of the EU’s core values and fundamental objectives. In this connection, concurring with Advocate General Collins, it is worth mentioning that EU primary law contains a number of provisions that establish an obligation to mainstream equality and non-discrimination. This is the case of Article 8 or Article 10 TFEU, which, as clarified by the Court itself in VT (C-304/21, para. 34) set out obligations on the Union, not on the Member States. It is equally noteworthy that the Court clarified that the provisions of the Qualification Directive must be interpreted in a manner that is consistent with the EU Charter’s rights, including Article 21 (1) of the Charter, which prohibits any discrimination based on, inter alia, sex.

This axiological dimension of gender equality is especially significant because it constitutes an attempt to frame equality as a ‘central concern.’ In other words, by insisting on the value of gender equality, the Court was not only able to expand the interpretation of refugee law concepts, as will be explained below, but sent a clear message about gender mainstreaming, which has been very challenging to implement, as noted by Timmer.

 

Equality and the construction of the ‘particular social group’

Even if partly calibrating the emphasis permeating the Advocate General’s Opinion, the Court used this axiological framework to acknowledge that women, who have spent most of their lives in the Netherlands, will have been influenced by the value of gender equality. This value constitutes an indelible part of their identity and reflects core values, principles, and fundamental rights deeply rooted in the EU legal tradition.

Accordingly, the Court finds that the fact that a female third country national identifies herself with the fundamental value of equality between women and men can be regarded as ‘a characteristic or belief which is so fundamental to the identity or moral integrity of the concerned person that she should not be asked to renounce it’. According to the Court, the crystallisation of such a fundamental characteristic stems from the exposure to the fundamental value of equality between women and men during a phase of life in which a young woman forms her identity. What is striking is that such a fundamental characteristic is established, as in casu, outside of the country of origin and whilst the applicant was living in the host State, waiting for the asylum application to be processed. Essentially, the Court decides that the applicants are to be seen de facto as sur place refugees, because of their actions outside the country of origin, as clarified by the United Nations High Commissioner on Refugees (UNHCR).

The Court also takes a chance to clarify the relationship with other possible grounds for persecution, such as religion or political opinion. The fact these grounds could also connect with the personal affinity with the value of equality between women and men did not prevent the Court from affirming that these women could be regarded as belonging to a particular social group. As is known, this ground requires two cumulative conditions, namely the identification of a common essential characteristic and that those sharing such a characteristic are seen as “different” from the surrounding society (or part of it). According to the Court, the latter condition is satisfied by the specific circumstances in the country of origin. In this regard, by echoing the argument made in WS, the Court reiterates that ‘it is for the Member State concerned to determine which surrounding society is relevant when assessing whether such a social group exists.’ Nonetheless, even if much more engagement by the Court with issues related to cultural differences could be necessary, the Court seems to indicate that the value of equality between women and men constitutes the element through which the Member States have to assess the perception of the group in the surrounding society.

 

Waiting for the next episode…

This judgment represents another episode of a series of developments towards a more gender-sensitive EU asylum law. In WS the Court has already established that women in a country as a whole may be regarded as belonging to ‘a particular social group’,  thereby ending once and for all the discussion whether the size of the group may prevent such qualification.

In K, L, by recognising that refugee status may be granted to women who identify themselves in the value of equality between women and men, the Court makes a twofold contribution. First, the Court indirectly contributes to gender mainstreaming in EU law by upholding gender equality as a core value of the EU. Following up on the previous ruling in WS, the CJEU uses the Istanbul Convention and CEDAW as ‘relevant treaties’ in the meaning of Article 78 (1) TFEU, to interpret EU Asylum Law. This is an important step in preventing legal fragmentation in the protection of women against discrimination and violence and in creating a coherent framework across legal fields at the international and European levels.

Second, the Court’s ruling in K, L opens the way to the next episode in promoting a more gender-sensitive EU asylum law. A case in point concerns the pending joined cases in AH (C608/22) and FN (C609/22). The Court will decide whether the requirement for individual assessment may be relinquished for women fleeing the Taliban regime in Afghanistan, as proposed by Advocate General de la Tour in his Opinion, analysed here. Such a case is directly related to gender equality and the systematic discrimination against women. Therefore, the centrality and axiological dimension given to gender equality by the Court in  K, L will play a crucial role in future decisions. It is legitimate to expect that when the circumstances in the country of origin reach a point where gender equality is utterly demolished, as in the case of Afghanistan under Taliban rule, even the need for an individual assessment for the recognition of refugee status could be put aside.

 

Thursday 6 June 2024

EU Media Freedom Act: the convolutions of the new legislation

 



Samira Asmaa Allioui, research and tutorial fellow at the Centre d'études internationales et européennes de l'Université de Strasbourg

 

Photo credit: Bin im Garten, via Wikimedia Commons

 

Journalists are under pressure in different ways. Throughout the last few years, media freedom and especially media pluralism are in peril.

On December 15, 2023, the European Council and the European Parliament struck a deal on rules to safeguard media freedom, media pluralism and editorial independence in the European Union. The EU Media Freedom Act (EMFA) promised increased transparency about media ownership and safeguards against government surveillance and the use of spyware against journalists. The agreement comes after numerous revisions of the Audiovisual Media Services Directive (AMSD) and new regulations such as the Digital Market Act (DMA) and Digital Services Act (DSA). As a reminder, the EMFA builds on the DSA.

The aim of this contribution is to present an overview of the EMFA and specifically to analyse to what extent its rules still contribute to the limitation of freedom of speech, the erosion of trust, the breach of democratic processes, disinformation, and legal uncertainty.

The EMFA requires EU countries to respect editorial freedom, no spyware, no political interference, stable funding for public media, protection of online media and transparent state advertising.  It established a European watchdog: a new independent European Board for Media Services to fight interference from inside and outside the EU.

Nevertheless, this new EU legislation tries to set boundaries for the journalists’ actions through Article 18 EMFA on the protection of media content on very large online platforms (VLOPs), and the potential detrimental effects of introducing something akin to a media exemption. But the most significant ambiguity is addressed by Article 2 of the EMFA on the definition of ‘media service’ which appears to be the problem everyone acknowledges. This raises the question of who the EMFA is protecting. Are democracy and the possibility for people to get impartial and unbiased information really strengthened? Not forgetting that for the European Parliament elections, there is a potential danger of political interference by extra-European countries that will try to take advantage of democratic elections to influence the media illegally, by creating fake social media accounts and by launching a massive propaganda campaign to disseminate conflict-ridden content.

 

THE ACCURACY OF INFORMATION

The EMFA focuses on two main points regarding VLOPs. First, it asserts that platforms limit users’ access to reliable content when they apply their terms and conditions to media companies that practice editorial responsibility and create news conforming with journalistic standards. First, the Regulation takes aim at VLOPs’ gatekeeping power over access to media content. To do so, the EMFA aims to remould the relationship between media and platforms. Media service providers that exercise editorial responsibility for their content have a primary role in the dissemination of information and in the exercise of freedom of information online. In exercising this editorial responsibility, they are expected to intervene diligently and provide reliable information that complies with fundamental rights, in accordance with the regulatory or self-regulatory requirements to which they are subject in the Member States.

Secondly, it asserts that the quality of the media may fight against disinformation. To consider this problem, the EMFA’s objective is to adjust the connection between platforms and media. According to Article 2 EMFA, ‘media service’ means ‘a service as defined by Articles 56 and 57 [TFEU], where the principal purpose of the service or a dissociable section thereof consists in providing programmes or press publications, to the general public, under the editorial responsibility of a media service provider, by any means, in order to inform, entertain or educate’  A ‘media service’ has some protections under the Act.  According to Joan Barrata, the media definition under EMFA is an overly “limited” definition, which is not “aligned” with international and European human rights standards, and “discriminatory”, as it excludes “certain forms of media and journalistic activity”. The DSA classifies platforms or search engines that have more than 45 million users per month in the EU as VLOPs or Very Large Online Search Engines (VLOSEs). As an illustration, according to Article 18 EMFA, media service providers will be afforded special transparency and contestation rights on platforms. In addition to that, according to Article 19 EMFA, media service providers will have the opportunity to engage in a constructed dialogue with platforms on concepts such as disinformation. Under the agreement, VLOPs will have to inform media service providers that they plan to remove or restrict their content and give them 24 hours to answer (except in the event of a crisis as defined in the DSA).

Article 18 of the EMFA enforces a 24-hour content moderation exemption for media, effectively making platforms host content by force. By making platforms host content by force, this rule prevents large online platforms from deleting media content that violates community guidelines. Nevertheless, not only it could threaten marginalised groups, but it could also undermine equality of speech and fuel disinformation. This is a vicious circle between the speaker planting false information on social media, the media platform spreading the false speech thanks to amplifying algorithms or human-simulating bots, and the recipients who view the claims and spread them.

According to the EMFA provides that, before signing up to a social media platform, platforms must create a “special/privileged communication channel” to consider content restrictions with “media service providers”, defined as “a natural or legal person whose professional activity is to provide a media service and who has editorial responsibility for the choice of the content of the media service and determines the manner in which it is organised “. In other words, instead of being forced to host any content, online platforms should provide special privileged treatment to certain media outlets.

However, not only does this strategy impede platforms’ autonomy in enforcing their terms of use (nudity, disinformation, self-harm) but it also imperils the protection of marginalised groups who are frequently the main targets of disinformation and hate speech. Politics remains fertile ground for hate speech as well as disinformation. Online platforms and social media have played a key role in amplifying the spread of hate speech and disinformation. As proof, recent reports reveal the widespread abuse of these platforms by political parties and governments. Indeed, it turns out that more than 80 countries around the world have engaged in political disinformation campaigns.

This could also permit misleading information to remain online which allows sufficient time to see the information transmitted and disseminated, hindering one of the key objectives of EMFA - to give more reliable sources of information to citizens.


ABUSIVE REGULATORY INTERVENTION AND DETERIORATION OF TRUST

Primarily, one can only be concerned about any regulatory intervention by governments on issues such as freedom of expression or media freedom. Through their EU Treaty competencies in security and defence matters, EU Member States seem to be winning because their options to spy on reporters have been reaffirmed. However, according to the final text (April 11, 2024), the European Parliament added important guarantees to allow the use of spyware, which will only be possible on a case-by-case basis and subject to authorization from an investigating judicial authority as regards serious offenses punishable by a sufficiently long custodial sentence.

Furthermore, it must be emphasized that even in these cases the subjects will have the right to be informed after the surveillance and will be able to challenge it in court. It is also specified that the use of spyware against the media, journalists and their families is prohibited. In the same vein, the rules specify that journalists should not be prosecuted for having protected the confidentiality of their sources.

The law restricts possible exceptions to this for national security reasons which fall within the competence of member states or in cases of investigations into a closed list of crimes, such as murder, child abuse or terrorism. Only in such situations or cases of neglect, the law makes it very clear that this must be duly justified, on a case-by-case basis, in accordance with the Charter of Fundamental Rights, in circumstances where no other investigative tool would be adequate.

In this regard, the law therefore allows for new concrete guarantees at EU level in this regard. Any journalist concerned would have the right to seek effective judicial protection from an independent court in the Member State concerned. In addition to that, each Member State will have to designate an independent authority responsible for handling complaints from journalists concerning the use of spyware against them. These independent authorities provide, within three months of the request, an opinion on compliance with the provisions of the law on media freedom.

Some governments in Europe have tried to interfere in the work of journalists recently which is a blatant demonstration of how far politicians can go against media using national security as an excuse. To avoid an erosion of trust, media service providers must be totally transparent about their ownership structures. That is why, in its final version (April 2024), the EMFA enhances transparency of media ownership, responding to rising concerns in the EU about this issue. The EMFA broadens the scope of the requirements of transparency, providing for rules guaranteeing the transparency of media ownership and preventing conflicts of interest (Article 6) as well as the creation of a coordination mechanism between national regulators in order to respond to propaganda from hostile countries outside the EU (Article 17).

To do that, there is a need to deepen safeguards to shield all media against economic capture by private owners to avoid media capture. It can be worse when no official intervention can mean non-transparent and selective support for pro-government media. As a matter of fact, it demonstrates that a combination of political pressure and corruption can be risky for the free press.

Secondly, the EMFA’s content moderation provisions could ruin public trust in media and endanger the integrity of information channels. Online platforms moderate illegal content online. Moderation provisions include: a solution-orientated conversation between the parties (VLOPs, the media and civil society) to avoid unjustified content removals; obligatory annual reporting (reports on content moderation which must include information about the moderation initiative, including information relating to illegal content, complaints received under complaints-handling systems, use of automated tools and training measures) by very large online platforms (VLOPs); any complaint lodged under complaints-handling systems by media service providers must be processed with priority; and additional protection against the unjustified removal by VLOPs of media content produced according to professional standards. These platforms will need to take every precaution to communicate the reasons for suspending content to media service providers before the suspension becomes effective. The process consists of a series of safeguards to ensure that this rapid alert procedure is consistent with the European Commissions’ priorities such as the fight against disinformation. In this regard, the Electronic Frontier Foundation states that « By creating a special class of privileged self-declared media providers whose content cannot be removed from big tech platforms, the law not only changes company policies but risks harming users in the EU and beyond ».


MEDIA COMPANIES AND PLATFORMS BARGAINING CONTENT

Yet the EMFA still does not deal with the complex issue of who would oversee controlling the self-declarations (Article 18(1) EMFA). More precisely, according to Article 18 EMFA “Providers of [VLOPs] shall provide a functionality allowing recipients of their services to declare” that they are media service providers. This self-declaration can be done, mainly, according to three criteria: if public service media providers fulfill the definition of Article 2 EMFA; if public service media providers “declare that they are editorially independent from Member States, political parties, third countries and entities owned or controlled by third countries”; and if public service media providers “declare that they are subject to regulatory requirements for the exercise of editorial responsibility in one or more Member States” or adhere “to a co-regulatory or self-regulatory mechanism governing editorial standards that is widely recognised and accepted in the relevant media sector in one or more Member States”. According to Article 18(4), when a VLOP decides to suspend its services regarding the content provided by a self-declared media service provider, “on the grounds that such content is incompatible with its terms and conditions”, it must “communicate to the media service provider concerned a statement of reasons” accompanying that decision “prior to such a decision to suspend or restrict visibility taking effect”.

Aside from that, Article 18 EMFA  splits the rules implemented by the Digital Services Act (DSA), a horizontal instrument that aims to create and ensure a more trustworthy online environment by putting in place a multilevel framework of responsibilities targeted at different types of services and by proposing a set of asymmetric obligations harmonized at EU level with the aim of ensuring regulatory oversight of the EU transparency, online space and accountability. Those rules covering all services and all types of illegal content, including goods or services are set by the DSA. This implies that media regulators will be enrolled in the cooperation mechanisms that will be set up for the aspects falling under their mandate. The inception of a specific “structured cooperation” mechanism is intended to contribute to strengthening robustness, legal certainty, and predictability of cross-border regulatory cooperation. This entails enhanced coordination and more precisely collective deliberation between national regulatory authorities (NRAs) which can bring significant added value to the application of the EMFA. This implies that media regulators will be involved in the cooperation mechanisms that will be set up for the aspects falling under their remit, even if it is still unclear how this will look in practice.

Above all, how will the new legislation be applied in practice and how will it work to ensure that it neither undermines the equality of speech and democratic debate nor endangers vulnerable groups? Excluding the fact that Article 18 of the EMFA incorporates safeguards about AI-generated content, details about which remain undisclosed as of now (see also Hajli et al on ‘Social Bots and the Spread of Disinformation in Social Media’ and Vaccari and Chadwick on ‘Deepfakes and Disinformation’), there is clearly reason to be concerned about the use of generative AI to promote disinformation and deep fakes. In an era where new technologies dominate, voluntary guidelines are not enough. Stronger measures are urgently needed to balance free speech and to have control over AI systems. It is admitted that while AI can be an excellent tool for journalists, it can also be used for bad purposes.

 

INEQUALITY BETWEEN MEDIA PROVIDERS: THE ATTRIBUTION OF A SPECIAL STATUS

In terms of platforms and media companies negotiating content, since not all media providers (media companies negotiating content) will receive a special status, it creates inequality. Platforms will have to guarantee that most of the reported information is publicly accessible. The main privilege resulting from this special status is that VLOP providers are more restricted in the way they moderate the content, but not in the sense of a ban on acting against this content but rather in the form of advanced transparency and information towards the information provider concerned. This effectively leads to an uncertain negotiation situation in which influential media and platforms negotiate over what content remains visible. This is especially true since the media have financial interests in seeking a rapid means of communication and in ensuring that their content remains visible even if it is at the expense of small providers.


CONCLUSION

As a conclusion, the risk to tamper with public opinion by disguising disinformation and propaganda as legitimate media content is still reflected in Article 18’s self-proclamation mechanism. In top of that, the risk of establishing two categories of freedom of speech arises from the fragmentation of legislation, not aligning with the DSA. Then, our capacity to create informed decisions could be undermined by Article 18 EMFA, an article that allows self-proclaimed media entities to operate with insufficient oversight. Furthermore, our democratic processes risk to be severely damaged by the unregulated spread of disinformation. Finally, the opacity of Article 18 in the determination of the authenticity of self-proclaimed media engenders problems of compliance enforcement.

The elements recalled here highlight the underside of the new legislation and corroborates that efforts must be made in the future to remedy the critical situation of press freedom within the EU.