Thursday, September 03, 2009

Protection for anonymous speech on-line

This piece by Sam Bayard very usefully tracks the development of US authority on protection of anonymous online speech: D.C. High Court Joins Consensus Protecting the Anonymity of Online Speakers.

Monday, August 03, 2009

Criminal and seditious libel – time to move on

At common law, there are a number of criminal offences that have historically been used to silence dissenting voices. The offence of seditious libel in particular stands out. There is no clear agreed definition, but the main element is to bring into hatred or contempt, or excite disaffection against, the government.

Harry Kalven, a leading free speech scholar of the 20th century, said of the offence:

The concept of seditious libel strikes at the heart of democracy. Political freedom ends when government can use its powers and its courts to silence its critics … If [a society] makes seditious libel an offence, it is not a free society no matter what its other characteristics.[1]

That is a strong statement, but a quick look at the history of the offence would tend to confirm Kalven’s view. Introduced in the 17th century, it was used against such dangerous individuals as Thomas Paine – on the grounds that his Rights of Man brought the King and Government into hatred and contempt – and Indian freedom fighter Bal Gangadhar Tilak. More recently, however, the offence has fallen into disuse in the UK – there have been no successful prosecutions in living memory, and in 1990 the Divisional Court resolutely rejected an attempt to prosecute Salman Rushdie and his publisher[2] – and countries such as New Zealand have formally abolished it.

Elsewhere, however, the offence of sedition is alive and well and in frequent use – particularly in less democratic parts of the world. In the Gambia, for example (a tourist paradise but also one of the more dangerous places on the planet to be a journalist) a group of seven Gambian journalists is currently on trial for publishing and conspiracy to publish seditious materials. What was the allegedly seditious material they published? They had commented that the remarks by the Gambian President on the unsolved murder of Deyda Hydara, a journalist shot dead in a roadside attack in December 2004, were “inopportune” and “provocative”. They furthermore called on the President to admit to long-suspected government involvement in the Hydara murder and institute a renewed investigation. Government involvement is not implausible, incidentally: the Gambian government has a history of “disappearing” journalists and is currently refusing to comply with a June 2008 judgment handed down by the ECOWAS Court of Justice ordering it to produce Chief Manneh, a journalist who was last seen being bundled into a car by suspected security agents. The sedition trial is ongoing – with prosecution witnesses being heard behind closed doors, Star Chamber-like – and if found guilty, the journalists face a lengthy term of imprisonment.

This case in the Gambia is not an isolated instance: over the last few years there have been dozens if not hundreds of prosecutions for sedition in such countries as Malaysia, Uganda and India. Allegedly ‘seditious’ publications over which individuals have been prosecuted include publishing the flag of Malaysia upside down as a form of protest;[3] describing the Gambian president (him again) a “bundle of terror”;[4] and alleging government involvement in killings in North Uganda.[5]

Sedition is not the only common law offence used to suppress legitimate dissent and freedom of expression. The ‘old’ offence of criminal libel is similarly useful to governments of a lesser democratic streak who wish to silence oppositional voices. Criminal libel was introduced at around the same time as seditious libel – in Elizabethan Britain – with the object to end the common practice among ‘gentlemen’ to settle disputes involving their honour by dueling. It was, essentially, a public order offence. It has all but fallen into disuse in the UK, where successful prosecutions are now as rare as hen’s teeth, and has been abolished elsewhere. However, like sedition, it is a tool that is still in common use to suppress dissent in countries in the lower regions of the democracy rankings. In fact, research has shown that criminal defamation is the tool of choice for this purpose: a recent mapping exercise by the freedom of expression organization, Article 19, identified dozens of countries where criminal defamation remains in active use (in addition to several more where it lies dormant) and several journalists serving prison sentences.[6]

The problem with both sedition and criminal libel lies not just in the individual cases in which the law is actually used to prosecute independently minded journalists. Because of the invariably harsh sanctions that are available, both offences cast a long shadow: no journalist relishes the prospect of a lengthy term of imprisonment. It should also be noted that suspended sentences are very effective: commonly imposed in countries in Eastern Europe as well as in Africa, Asia and Latin America, these are as effective in silencing a critical voice as an actual term of imprisonment: the suspended sentence hangs over a journalist’s head like the Sword of Damocles.

Because of this, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the Special Rapporteur for Freedom of Expression at the OAS have all called on States to repeal criminal defamation laws.

A longstanding problem, however, has been the continuing existence of both criminal and seditious libel (and similar offences in civil law countries) on the Statute books. The Gambian government justifies its use of sedition laws by pointing at their continued presence on the UK statute books, saying, in effect, “if you have retained these laws then surely they must be democratic”.

But a glimmer of hope has appeared on the horizon. Following a long campaign by a coalition of various free speech groups, the UK government on 9 July 2009 agreed formally to abolish the offences of criminal, seditious, and obscene libel. Lord Bach, for the ministry of justice, stated in the House of Lords:

[T]hese are arcane offences that no longer have a place in our legal system. They stem from a bygone age when freedom of expression was not seen as the right that it is today.[7]

Lord Bach made clear that the crimes of sedition and criminal libel were being abolished largely for foreign policy reasons:

Taking the initiative to abolish those offences would be a positive step in helping this country, the United Kingdom, to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.[8]

Formal abolition is likely to take place in November, when the Bill in which these amendments will be made (the Coroners and Justice Bill 2009) is likely to receive Royal Assent.

This move by the UK government is an significant victory for free speech campaigners and sends an important signal that criminal and seditious libel laws have no place in any democracy. It may be influential in various constitutional challenges that are pending – the Ugandan Supreme Court is currently considering a petition to declare criminal libel unconstitutional, for example.[9]

The abolition of these laws in the UK, and the strong governmental statement that these laws are arcane and of a bygone era, may also encourage the European Court of Human Rights to take a stronger stance on the abuse of these laws (while the Court often finds violations in individual cases it has not, as yet, gone so far as to declare criminal and seditious libel laws to violate the right to freedom of expression per se). Such a finding would certainly be welcome; in a country like Azerbaijan, which falls under the jurisdiction of the European Court of Human Rights, several journalists are currently serving prison sentences for criminal defamation and related offences. While the European Court will certainly find their convictions to violate the right to freedom of expression when their cases finally come before it, an unequivocal statement by the Court that the criminal libel law itself is at the heart of the problem (it certainly is in the hands of the current government) would surely trigger their abolition and improve media freedom throughout Europe.

Peter Noorlander

Legal Director, Media Legal Defence Initiative*

* the Media Legal Defence Initiative ( is supporting the defence of the GPU 7, as they have become known, and several other of the prosecutions mentioned in this article. To find out more or to become involved in our work, email

[1] Harry Kalven, ‘The New York Times Case: A Note on “the Central Meaning of the First Amendment”, [1964] Sup Ct Rev 191 at 205.

[2] R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 All England Law Reports 306. This decision was equally resolutely confirmed by the European Commission of Human Rights, with which Rushdie’s would-be private prosecutor Abdal Choudhury had lodged a complaint for violation of his right to freedom of expression: Choudhury v. the United Kingdom, Application No. 17439/90, 5 March 1991.

[4] By US-based Gambian journalist Fatou Jaw Manneh:

[5] By Andrew Mwenda, Managing Editor of The Independent, a political affairs magazine in Uganda, and two of his journalists, John Njoroge and Charles Bichachi

[8] Ibid.

[9] The Constitutional Court, which acts as a court of first instance in these matters, turned the petition down.

Protection of sources - Irish Supreme Court

The Irish Supreme Court has upheld an appeal by two Irish Times journalists against an order requiring them to answer questions at the Mahon tribunal about the source of an article revealing payments to former taoiseach Bertie Ahern: Mahon Tribunal -v- Keena & anor [2009] IESC 64 (31 July 2009) . It's a narrow-ish victory and doesn't move the law forward much - or at all even, but a victory for media freedom nonetheless.

Friday, July 31, 2009

Zuma obtains 'very substantial' libel damages from the UK Guardian

The statement made in court can be found on the Schillings website:

Tuesday, July 14, 2009

Constitutional Court of Colombia finds Criminal Code article affecting slander and libel cases to be unconstitutional

From the Colombian Free Press Foundation:

"Journalists and media outlets will no longer be subjected to criminal charges for libel and slander when they publicise truthful information about individuals who have been absolved of wrongdoing by the judicial system. A Constitutional Court ruling to this effect was made public on 2 July. In making the decision, the Constitutional Court declared Article 224 of the Criminal Code to be contrary to the Constitution.

The ruling came about as the result of a request submitted by the Los Andes University Law Department's Public Interest Group (Grupo de Interés Público de la Facultad de Derecho de la Universidad de Los Andes), with support from FLIP. In the request, the Constitutional Court was asked to review the constitutionality of the Criminal Code article in question. The request for review was supported by citizens and both national and international universities and organisations.

The Criminal Code article covers situations where an individual is absolved of wrongdoing or where a court case against an individual is dropped. In these cases, the Criminal Code states that if a media outlet or media practitioner is sued for publicising information about that individual or event, they cannot not exempt themselves of responsibility for the information even if they prove it to be true. The Constitutional Court ruled that, contrary to the Criminal Code article, the proof of the truthfulness of the information in question is admissible and can be used a defence against the slander or libel charge.

The Constitutional Court described Article 224 of the Criminal Code as stating the following: when a sentence has already been issued in a case (. . .) no further information can be publicised about the case that was the subject of the criminal proceedings, even if it relates to issues such as risks to international humanitarian law or human rights, or the functioning of democracy and its institutions, such as takes place with accusations against public figures and in criminal investigations that are highly relevant to the public.

The Constitutional Court considered the Criminal Code article to give disproportionate consideration to the right to honour of individuals relative to the right to freedom of expression and information rights. The court stated that the appropriate use of freedom of expression cannot be criminally punished when the information distributed is truthful - or at least is based on real events and the required sources have been consulted - since this constitutes a risk to the right to information.

With its decision, the Constitutional Court did not decriminalise slander and libel, but it has made a ruling with respect to the proportionality of a criminal law sentencing relative to the right to freedom of expression. The right to freedom of expression has been deemed to prevail over the right to honour of individuals. In addition, the decision highlights the importance of the journalistic investigation - its truthfulness and impartiality - with respect to issues of public interest, independent of whether an issue has been resolved at the judicial level. "

Friday, July 10, 2009

"blogging is essentially a public rather than a private activity"

In this interesting judgment Eady J holds that blogging is essentially a public rather than a private activity" and that no expectation of anonymity can arise even when a blogger takes steps to preserve his or her anonymity: The Author of A Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB) (16 June 2009)

UK government commits to abolition of criminal, seditious and obscene libel

Great news in the House of Lords yesterday. Lord Bach, parliamentary under-secretary of state for the ministry of justice, said, in response to amendments tabled by the indefatigable Lord Lester:

"the amendments would abolish the common law offences of sedition and defamatory forms of criminal libel. The Committee will be grateful to him for his explanation of his amendments. We have listened carefully to this short debate. From what we have heard, there seems to be a broad consensus that these are arcane offences that no longer have a place in our legal system. They stem from a bygone age when freedom of expression was not seen as the right that it is today. We agree.

As the noble Lord, Lord Lester, said, any behaviour that should remain criminal is amply covered by other, more modern offences. The noble Lord, Lord Kingsland, made the same point. Taking the initiative to abolish those offences would be a positive step in helping this country, the United Kingdom, to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.

The Government are content to accept the amendments in principle ... I can undertake to propose similar amendments in time for Report. Those amendments would, among other things, extend abolition of the offences to Northern Ireland and pick up some consequential amendments and repeals to various linked statutory provisions. We also intend to take the opportunity to abolish the obsolete offence of obscene libel."

Thursday, July 09, 2009

Who asked for Ireland's blasphemy law?

Great opinion piece on the new not-so-great blasphemy provisions in Ireland's new Defamation Act in the Guardian today, by Index on Censorship's Padraig Reidy:

"I'm not sure which piece of unpopular Irish news is being buried by which: the announcement of a second referendum on the Lisbon treaty, or the shuffling through of a law creating penalties for blasphemy, an offence that has never properly existed in the Irish state.

While there is certainly a store of resentment in the population at being asked to vote again (that is: vote properly, you morons, as the government is barely holding back from saying) on the Lisbon treaty, there is a certain sense of bafflement at the new blasphemy legislation, smuggled in under the guise of defamation law reform. Nobody wanted this law: no one can think of a single thundering priest, austere vicar, irate rabbi or miffed mullah ever calling for tougher penalties for blasphemy. Certainly there were the frequent, and frequently ignored missives from Armagh, warning the Irish not to abandon God for 4x4s and Nintendo Wiis. And there was widespread dismay when popular comic Tommy Tiernan pushed the Bible-baiting a bit too far on the Late Late Show. But never did anyone suggest we needed tough blasphemy laws. Until the justice minister, Dermot Ahern, decided we needed to fill the "void" left by our lack of one.

Technically, Ahern is correct that Bunreacht na hÉireann requires that blasphemy be a criminal offence. However, no one ever bothered to formulate what the exact offence might be, and we muddled on for quite a long time without anyone worrying about this (perhaps, as a friend pointed out to me, because all blasphemous material was grabbed by the all-powerful censors long before it could ever get to court). In 1999, there was an attempt to prosecute a newspaper for a cartoon mocking the church, but the judge in that case noted that he could not prosecute, because there was no definition of what legally constituted blasphemy. Well now there is. And it concerns itself with what might or might not cause "outrage among a substantial number of the adherents of [a] religion" (note, not just Christianity, as was the case with English blasphemy law: this is, at least, equal opportunities idiocy).

As Michael Nugent of Atheist Ireland has pointed out:

The proposed law does not protect religious belief; it incentivises outrage and it criminalises free speech. Under this proposed law, if a person expresses one belief about gods, and other people think that this insults a different belief about gods, then these people can become outraged, and this outrage can make it illegal for the first person to express his or her beliefs.

So Irish law has now enshrined the notion that the taking of offence is more important than free expression. If something might cause a motivated group to be "outraged", rather than, say, cause them to live in fear, then it is illegal, with a fine of up to €25,000 payable.

Note the ease with which a prosecution could be brought, and the punitive nature of the fine: this is not legislation that simply serves to tie up a few loose ends.

The minister claimed that his only alternative to this legislation was to have a referendum. This again, is technically true: any constitutional changes in Ireland require this. But the minister dismissed the notion of organising a referendum as being too costly in these straitened times.

Yet today, we are told there is to be another Lisbon referendum in October. Wouldn't it have been sensible to hold both the Lisbon referendum and a referendum on the abolition of the concept of blasphemy from the constitution on the same day, cutting down on costs? Wouldn't it, minister?

* © Guardian News and Media Limited 2009"

Monday, June 01, 2009

ECHR inches closer to accepting access to information as Article 10 right

In its decision in Kenedi v. Hungary, the Court has held that "access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant's right to freedom of expression (see, mutatis mutandis, Társaság a Szabadságjogokért v. Hungary, no. 37374/05, §§ 35 to 39, 14 April 2009)". There is no further discussion on the question of whether access to documents/information in general does or does not fall under the guarantee of Article 10, but this decision represents yet another step in that direction.

(See also the Court's recent decision in Társaság a Szabadságjogokért v. Hungary)

Thursday, May 14, 2009

Free speech vs. the jury trial system

There's an interesting case brewing here - it involves a jury foreman who spoke out to the media to voice his concern over the safety of a manslaughter verdict against a child carer who allegedly shook a child so violently it died. The conviction apparently relied entirely on circumstantial evidence and testimony of expert witnesses, and is itself currently being appealed.

See here for full text of the judgment.

Friday, May 08, 2009

Newspaper readers have Article 19 right to receive information

A new decision by the UN Human Rights Committee finds that every reader of a newspaper has an Article 19 right to "receive" the newspaper and material published by it. The case was brought by a newspaper editor whose paper was closed down, together with one of its readers. The Committee held:

"[T]he Committee is of the opinion that the application of the procedure of registration and re-registration of “Oina” did not allow Mr. Mavlonov, as the editor, and Mr. Sa’di, as a reader, to practice their freedom of expression, as defined in article 19, paragraph 2. The Committee notes that the State party has not made any attempt to address the authors’ specific claims, including Mr. Mavlonov’s reference to the decision of the Commission which suggests that the content of the “Oina” is the reason for the denial of the re-registration (see paragraph 2.6 above). Nor has it advanced arguments as to the compatibility of the requirements, which are de facto restrictions on the right to freedom of expression, which are applicable to the authors’ case, with any of the criteria listed in article 19, paragraph 3, of the Covenant. The Committee therefore finds that the right to freedom of expression under article 19 of the Covenant, respectively, Mr. Mavlonov’s ability to publish “Oina” and to impart information, and Mr. Sa’di’s right to receive information and ideas in print, has been violated. The Committee notes that the public has a right to receive information as a corollary of the specific function of a journalist and/or editor to impart information. It considers that Mr. Sa’di’s right to receive information as an “Oina” reader was violated by its non-registration."

The Committee also finds an Article 27 (right to culture) violation, given that the newspaper was a Tajik language one.

There is a strong dissent by Sir Nigel Rodley and Rafael Rivas Posada who disagree that readers have a self-standing Article 19 right to receive information:

"We find the Committee’s literalist reading of the right to receiving information and ideas is unconvincing. The Committee’s position would require it to treat every potential recipient of any information or ideas that have been improperly suffered under article 19 as a victim in the same way as the person having been prevented from expressing or imparting the information or ideas. Thus, it could find itself dealing with communication from every reader or viewer or listener of a medium of mass communication that has been improperly closed down or whose content has been improperly suppressed. This is not a ‘floodgates’ argument. Rather it is evident that its literalist approach may simply not be the most plausible interpretation of article 19(2). For us, this aspect of Mr. Sa’di’s complaint smacks of actio popularis."

While the Committee's reasoning could have been more elaborate, I do disagree with Rodley and Rivas - for reasons that will become obvious when you read the case.

See Mavlonov and Sa'adi v. Uzbekistan.

Thursday, April 30, 2009

Why blasphemy laws are unnecessary

During debates in the UK House of Lords, the magnificently-named Ear of Onslow had the ultimate answer to those who wish to (re)introduce/retain (as the case may be) blasphemy laws:

“[I]t has always struck me that if Jesus Christ exists, and if Jesus Christ in his Godlike form was capable of creating the universe, then he could quite easily hack the bit of left-wing obscurantism and b-mindedness that writes things such as “Jerry Springer: The Opera”. If he does not exist, nothing will happen; if he does exist, it is up to him to get hold of the chap who wrote it and make sure that he does time in the diabolical house of correction. The offence is unnecessary.”, column 1123

Wednesday, April 29, 2009

Shut the f*** up!

No more swearing on live TV - in the States at least - the US Supreme Court has upheld the FCC's so-called 'fleeting expletives' policy. See FCC v. Fox Networks (the case followed Bono swearing at the Golden Globe awards).

Wiki-publisher on the attack against copyright 'harassment'

The Electronic Frontier Foundation is supporting a federal action in California which seeks to enjoin Apple from harassing the publisher of a wiki by threatening them with copyright violations. Interesting case, court papers are on the eff website. It's one to follow - the first one I know of where someone is actually on the legal attack against the copyright gang.

Tuesday, April 28, 2009

Privacy and defamation at the ECHR - two new cases

The European Court of Human Rights has issued two new decisions on privacy and defamation: Karako v. Hungary and Egeland and Hanseid v. Norway. Karako is an Article 8 defamation case, in which the Court holds no violation for strident comments made regarding a politician during election times. The Court's reasoning is interesting as it attempts to answer some questions on the extent to which Article 8 protects reputation:

"23. For the Court, personal integrity rights falling within the ambit of Article 8 are unrelated to the external evaluation of the individual, whereas in matters of reputation, that evaluation is decisive: one may lose the esteem of society – perhaps rightly so – but not one's integrity, which remains inalienable. In the Court's case-law, reputation has only been deemed to be an independent right sporadically (see Petrina v. Romania, no. 78060/01, 14 October 2008, and Armonienė v. Lithuania, no. 36919/02, 25 November 2008) and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant's private life. However, in the instant case, the applicant has not shown that the publication in question, allegedly affecting his reputation, constituted such a serious interference with his private life as to undermine his personal integrity. The Court therefore concludes that it was the applicant's reputation alone which was at stake in the context of an expression made to his alleged detriment."

This is where the reasoning ends - unfortunately. While to me it would follow that the case should be inadmissible since Article 8 is not affected (the alleged interference did not actually impinge on the private sphere), the Court goes on to apply article 10 reasoning and finds no violation of Article 8. The Court does seem to be taking time here to reflect and the decision puts an interesting gloss on Petrina and Pfeiffer. There's a partly concurring opinion by judge Jociene who favours a much bolder appraoch in favour of reputation as an article 8 right. It's a Second Section decision.

The first Section, meanwhile, continues on the pro-privacy path in Egeland and Hanseid v. Norway, a case concerning the taking of photographs of accused outside the court. Rozakis states in his concurring opinion (which otherwise is concerned with the margin of appreciation): "in matters of clashes between freedom of expression (and more specifically the taking of photographs in a public place) and the right to private life, the Court has already developed jurisprudence to the effect that the balance should be tipped in favour of private life".

Tuesday, April 14, 2009

Access to Information: New Article 10 Decision

The Court has today notified its judgment in Társaság a Szabadságjogokért v. Hungary, a case which concerned an access to information request filed by the Hungarian Civil Liberties Union to the Hungarian Constitutional Court and rejected by that court on data protection grounds.

In an interesting if somewhat enigmatic judgment, the Court found a violation of Article 10:

"The law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom. The function of the press includes the creation of forums for public debate. However, the realisation of this function is not limited to the media or professional journalists. In the present case, the preparation of the forum of public debate was conducted by a non-governmental organisation. The purpose of the applicant's activities can therefore be said to have been an essential element of informed public debate. The Court has repeatedly recognised civil society's important contribution to the discussion of public affairs. The applicant is an association involved in human rights litigation with various objectives, including the protection of freedom of information. It may therefore be characterised, like the press, as a social “watchdog”. In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.

The subject matter of the instant dispute was the constitutionality of criminal legislation concerning drug-related offences. In the Court's view, the submission of an application for an a posteriori abstract review of this legislation, especially by a Member of Parliament, undoubtedly constituted a matter of public interest. Consequently, the Court finds that the applicant was involved in the legitimate gathering of information on a matter of public importance. It observes that the authorities interfered in the preparatory stage of this process by creating an administrative obstacle. The Constitutional Court's monopoly of information thus amounted to a form of censorship. Furthermore, given that the applicant's intention was to impart to the public the information gathered from the constitutional complaint in question, and thereby to contribute to the public debate concerning legislation on drug-related offences, its right to impart information was clearly impaired.


The Court recalls at the outset that “Article 10 does not ... confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual” and that “it is difficult to derive from the Convention a general right of access to administrative data and documents”. Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” and thereby towards the recognition of a right of access to information.


In any event, the Court notes that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him”. It considers that the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. In this connection, a comparison can be drawn with the Court's previous concerns that preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny. Moreover, the State's obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities. The Court notes at this juncture that the information sought by the applicant in the present case was ready and available and did not require the collection of any data by the Government. Therefore, the Court considers that the State had an obligation not to impede the flow of information sought by the applicant.


The Court observes that the applicant had requested information about the constitutional complaint eventually without the personal data of its author. Moreover, the Court finds it quite implausible that any reference to the private life of the MP, hence to a protected private sphere, could be discerned from his constitutional complaint. It is true that he had informed the press that he had lodged the complaint, and therefore his opinion on this public matter could, in principle, be identified with his person. However, the Court considers that it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights, alleging that their opinions on public matters are related to their person and therefore constitute private data which cannot be disclosed without consent. These considerations cannot justify, in the Court's view, the interference of which complaint is made in the present case.

The Court considers that obstacles created in order to hinder access to information of public interest may discourage those working in the media or related fields from pursuing such matters. As a result, they may no longer be able to play their vital role as “public watchdogs” and their ability to provide accurate and reliable information may be adversely affected.

The foregoing considerations lead the Court to conclude that the interference with the applicant's freedom of expression in the present case cannot be regarded as having been necessary in a democratic society. It follows that there has been a violation of Article 10 of the Convention."

Thursday, April 09, 2009

An ancient obstacle to free speech

from the Guardian's Comment is Free:

In 1848, the Duke of Brunswick sent his agent to buy an 18-year-old copy of the Weekly Dispatch from the publishers' office. It had come to his attention that an article in the 1830 volume of that magazine was defamatory of him, and he wished to do something about it. Despite the fact that the statute of limitations back then was set at six years and the duke was able to prove only that two copies were still in circulation – the one his agent had bought and another at the British Library – the court allowed the action to go ahead and eventually awarded him £500, a tidy sum in those days.

In an ideal world, only legal historians would be familiar with this ancient tale.

Unfortunately, in the non-ideal world that we inhabit, journalists and media lawyers alike are familiar with the case; it provides the foundation of the "multiple publication rule" which, as applied today, means that every time someone accesses a page on the internet it is deemed to be "published" afresh. The result: the statute of limitations never runs out, and actions for libel can potentially be launched in perpetuity.

This is highly problematic for anyone who publishes online. Most articles, once published on the internet, are archived online, usually with their own URLs. They can show up in search results and remain accessible to one and all.

Imagine, then, the scenario of an internet user engaging in a spot of vanity-Googling and discovering, somewhere in the search results, an article written about him several years ago and published in the online edition of a newspaper. It alleges – let's say – some form of misconduct in public office. The journalist who wrote the piece has since moved on and the editor may not have access to the journalist's notes or other material relevant to the story. Our random internet user sues for libel; how is the newspaper supposed to defend a case like that? Key witnesses may have disappeared and defences such as qualified privilege may have expired with the passage of time. Surely such a case ought to be thrown out; yet the law would allow it.

Many other countries spotted some time ago that the multiple publication rule produces absurd results. The New York appeals court ruled as early as 1948 that it had "its origin in an era which long antedated the modern process of mass publication and nationwide distribution of printed information" and that it "gave scant heed to the public policy which underlies statutes of limitation, to outlaw stale claims". Instead, the court held, there should be a single publication rule, declaring that the statute of limitations begins at the point of publication of an edition (while allowing that republication or publication of a paperback edition may reset the clock); not whenever a new sale is made. This "single publication" rule has since been held to apply to internet publications as well and sets the standard for balancing the interests of protecting reputation on the one hand, and the free flow of information and ideas on the other.

The European Court of Human Rights was invited in a recent case involving The Times to confirm that the UK's multiple publication rule violated the right to freedom of expression. While it declined to provide that ruling, the European court did acknowledge that "libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom".

The multiple publication rule is one of several factors that render UK libel law so plaintiff-friendly and attracts such a number of foreign litigants. It poses real and serious problems for UK publishers – and not just the big national publications, but also small regional and independent publishers – and is badly in need of reform. Last December, the government promised a consultation "as soon as possible in the new year". This promised consultation is yet to materialise. It is not clear what is causing the delay; but as the government dithers, free speech suffers.

Tuesday, March 10, 2009

Times v. UK: another cop out

The European Court of Human Rights has just notified its judgment in the case of Times v. UK, which concerned the question of the application of the UK's libel laws to newspaper Internet archives. This case raised two important questions of principle:
  1. whether archived news items should be considered to be published afresh whenever they are read and therefore potentially open to a defamation action many years after their original publication
  2. whether online publications should be required to monitor their entire archive and append notices to old news items whenever libel proceedings are initiated with regard to them
The Court manage to wrangle out of ruling on the first point, and on the second question considered that, on the facts of the case, there was no violation. It refused to rule on the wider issue of the chilling effect of the continuing vulnerability of archived stories to libel threats but conceded that "libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10."

This is another very weak Strasbourg judgment. Arguably wrong even on the facts, I take even greater exception to the Court's narrow-minded assertion that "it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the Internet publication rule in the present case" (paragraph 48). Why on earth not? Surely by ruling on points of principle the Court would redeems its position as a court of authority rather than a narrow last instance adjudicator of facts, and in the process begin to rid itself of its growing backlog of more than 100,000 cases. What Europe needs - with all respect and in the fullest understanding of the poor decisions that continue to come out of some countries - is not a court of last appeal that is collapsing under its caseload, but a constitutional court that lays down the basic rules and principles. So the current decision is not just poor for media freedom in Europe, but another step on the road towards a total collapse of the Strasbourg system.

Thursday, February 19, 2009

Google streetview privacy claim dismissed

As reported by the BBC:

A legal claim by a Pittsburgh couple that Google's Street View feature violated their privacy has been thrown out by a federal judge.

Tuesday, January 20, 2009

Pakistan may abolish blasphemy laws?

This could be of considerable interest if it goes through - might it knock the use of these laws in Afghanistan, for example, on the head?

Pakistan to Abolish Blasphemy Laws

Dan Wooding and Sheraz Khurram Khan

ASSIST News Service

January 19, 2009

ISLAMABAD, PAKISTAN (ANS) -- The Federal Minister for Minorities, Mr. Shahbaz Bhatti, has said that Pakistan’s controversial blasphemy laws 'will be abolished.'

Talking to ANS by phone the minister said he was struggling to ensure religious freedom, human dignity and social justice in Pakistani society.

“Religious minorities have been neglected, victimized and oppressed in Pakistan,” he said. “They have faced constitutional and institutionalized discrimination and inequality but our government is committed to address the long-standing issues of minorities. We are making all-out efforts to uplift and empower minorities.

Shahbaz Bhatti maintained that minorities have played a crucial role in Pakistan’s growth and nation building.

“Pakistan would not have risen on the map of the world without the crucial contribution of minorities,” he stated.

He recalled that minorities had cast their decisive vote in partition of the province of Punjab.

The Minister said he had come to parliament to advocate the case of the oppressed and the down-trodden people. He said he would never hesitate from giving any sacrifice for his people.

On Wednesday, January 14, a group of Christian lawyers from different parts of Pakistan held a meeting in Islamabad to discuss the issues being faced by religious minorities of Pakistan. The lawyers discussed minorities-related problems at length. The meeting also discussed steps taken by the Pakistan Peoples Party government for the betterment of religious minorities of Pakistan. After the meeting, they then visited the Federal Minister for Minorities, Mr. Shahbaz Bhatti, at his office.

“We, Christian lawyers, appreciate President Asif Ali Zardari and Prime Minister Syed Yousaf Raza Gilani for taking concrete steps such as the allocation of a five percent job quota for minorities, the declaration of August 11 as Minority Day, minorities representation in Senate, increase in minorities reserved seats in provincial and national assemblies, declaration of official celebration of religious festivals of minorities and review of all discriminatory laws facing minorities,” said a resolution which was passed unanimously by the lawyers.

The lawyers said they appreciated induction of Mr. Bhatti as Federal Minister for Minorities’ Affairs and put their full confidence in his leadership.

“We appreciate his long struggle to uplift and empower religious minorities. We also assure the present government that we will remain with the government through thick and thin under the leadership of Mr. Shahbaz Bhatti for the equal rights of religious minorities of Pakistan,” the resolution added.

It also said, “We extend our full support to the present democratic government which is committed to fulfill the vision of founding father Quaid-e-Azam Muhammad Ali Jinnah. We pledge to continue our efforts for supremacy of constitution, sovereignty of parliament and establishment of enlightened and moderate society which is free from every type of discrimination and inequality.”

Those who attended the meeting included Advocate Azra Shujaat, Jamshaid Rehmatullah, Aamir Jacob Randhawa, Eric Alam Sandhu, Sadqain Gardner, Rai Zafar Naveed Bhatti, Sohail Shahzad Advocate, Javed Masih, Qaisar Haroon Gill advocate, Ruth Bashir Advocate, Shazia Gulzar Advocate and Haroon Suleman Khokhar.

Copyright 2009 ASSIST News Service

Friday, January 09, 2009

Libel tourism - another case to follow

While, according to Justice Eady, it is "fashionable to rail against libel tourism" English law will not bar it - at least not in the case that 'Magic' Alex Mardas, long resident in Greece, has now brought against the International Herald Tribune (published in France) and the New York Times. One to follow...

Monday, January 05, 2009

ECHR defamation cases: imprisonment & enforced apologies

In the recently decided case of Mahmudov and Agazade v. Azerbaijan, the European Court of Human Rights reaffirmed that imprisonment is not a permissible sanction in defamation cases. Unfortunately, it also continued to rule it out altogether, stating that imprisonment may be permissible "where other fundamental rights have been seriously impaired, as, for example, in cases of hate speech or incitement to violence" (para. 50). Note that this does not limit imprisonment to situations of hate speech - hate speech is given as one example. While this certainly hints in the right direction, it is still not the kind of unequivocal language one might expect from a human rights court and gives government the opportunity to keep the sanction of imprisonment on the books. Not helpful...

Meanwhile, in Kazakov v. Russia, the Court offers this interesting statement: "to make someone retract his or her own opinion by acknowledging his or her own wrongness is a doubtful form of redress and does not appear to be “necessary”". Given that 'forced' apologies are a common feature of the defamation law in many European countries, this statement may have interesting ramifications for future cases.