16 October 2015

The fight against freedom of expression by the state, the municipalities and the unions

By Arild Holta

A slightly shorter version in Norwegian of this article was published by the author on 3 October 2015 on the website Verdidebatt ('Debate about values').
The English translation is published here by by the author's kind consent.

We had known for some time that the Norwegian government was planning legal restrictions on the freedom of expression, in order for the state to prevent society from acquiring information which can be documented through statistics and research about abuse of children in the care of the child protection services (CPS - Norwegian: 'barnevernet'). Back in 2012 the lawmakers lost patience.

Just like in socialist countries and totalitarian regimes, the bureaucracy gains increasing 'rights' to be spared disagreeable things like freedom of expression. The situation in Norway with regard to criticism of the CPS is getting to resemble exactly what Yugoslavs could tell us of the time under Tito: They could speak about everything, just not about employees of the state.

In 2012, §7 of the Personal Data Act ('Personopplysningsloven') was changed. Previously, not only journalistic and artistic products had been protected legally:
expressions – writings and utterances – aimed at creating an opinion among people were too, of course. In 2012 the word 'opinionsdannende' (creating an opinion) was removed from the law.

In this way our authorities limit the possibilities of making changes in our society, politically, religiously or otherwise. The limitation gives the authorities greater control over how public opinion is to be influenced or, one might say, by whom.

The previous formulation in the law was this:
"For behandling av personopplysninger utelukkende for kunstneriske, litterære eller journalistiske, herunder opinionsdannende formål, gjelder bare bestemmelsene i ..."
(Regarding the treatment of personal information exclusively for artistic, literary or journalistic, including opinion-forming, purposes, the only regulations to apply are ....)

One of the motives behind the change of the law was, as stated in the preparatory groundwork to it, that public employees who carry out their work in their own home, should be able to hide this, keep it secret. The fact that I myself had won through in
'Personvernnemnda' (the public institution which is the appeal instance regarding decisions made by 'Datatilsynet', the body receiving and deciding on complaints concerning published material), is expressly stated in the preparatory work to be a motive for the change desired by the state. The victory won for freedom of utterance in Personvernnemnda in that case was considerably reversed by the change of law in 2012.

The lawmakers lose patience

Rune Fardal had won in Personvernnemnda earlier in parallel cases. Therefore, the confidentiality which 'Datatilsynet' and the Ministry wanted had been rather successfully weakened already. Social workers in the field of child protection and their foster parents were – of course – not above being criticised publically.

Then I won through: temporary/emergency foster homes had no legal protection for their names and addresses to be secret and it was not punishable to publish them. A temporary foster home is a public institution and information about it is public information.

The system of temporary foster homes, however, is the holiest of cows in the child industry.

Another holy cow was that the particular public institution concerned in a concrete case probably consisted of a lesbian couple. Maybe in the name of equal rights, the authorities wanted at all cost to hide from public knowledge and possible criticism that children of Muslims, and heterosexuals who disapproved of homosexuality etc, were being placed with homosexuals.

So our authorities lost patience after several years of searching for possibilities of getting around free speech as a human right. They restricted the possibility of
creating an opinion on general grounds.

The human rights aspect

However, it is a violation of human rights if public employees cannot be made publically responsible. There are several judgments at the European Court of Human Rights in Strasbourg (ECtHR) which go to this question. Norway has been found guilty of violations of the Convention (ECHR), including violations of Article 10 - Freedom of expression. Norway has indeed been found guilty several times. To try to eliminate the criticisable practice in Norway in the area of freedom of expression and comply better with the ECHR, §100 of our constitution was changed in the early years of the 2000-decade.

However, as we have seen, the highly criticisable basic attitude to freedom of expression found in our state's legal establishment and elsewhere continues.


Links mainly in Norwegian:


The decision of 'Personvernnemnda':

The preparatory work regarding a planned change of law:

The Personal Data Act §7:

The complaint to 'Personvernnemnda':

The European Convention of Human Rights