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.