free speech law @ blogspot

ECHR ducks hate speech case

2011-11-22T16:27:00.000Z

Would have made for an interesting ruling, but SXB found jurisdictional objections. It's an old one but I'm archiving it here since I have, in the past few years, had to look for it several times:

Ben El Mahi v. Denmark, application 5853/06, decision of 11/12/2006 (inadmissible)

...

THE FACTS

The first applicant, Mr Mohammed Ben El Mahi, is a Moroccan national who was born in 1953 and lives in Morocco. He represents the second applicant, the Moroccan National Consumer Protection League, and the third applicant, the Moroccan Child Protection and Family Support Association. They were all represented before the Court by Mr E. Ludot, a lawyer practising in Rheims, France.

The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 17 September 2005 a privately owned Danish newspaper, Politiken, ran an article under the headline “Profound fear of criticism of Islam” (Dyb angst for kritik af islam). It reported on the difficulties encountered by the writer of a children’s book entitled The Koran and the Life of the Prophet Muhammad (Koranen og profeten Muhammeds liv) in finding an illustrator for the book.

On 30 September 2005 another privately owned Danish newspaper, Morgenavisen Jyllands-Posten, published twelve cartoons, most of which were caricatures of the Prophet Muhammad. The most controversial of the cartoons showed the Prophet Muhammad with a bomb in his turban. In the middle of the page carrying the cartoons was an explanatory text by the newspaper’s cultural affairs editor which stated, inter alia, as follows:

“Some Muslims reject modern secular society. They demand special status, insisting on special consideration of their own religious feelings. This is incompatible with secular democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. While this is not always agreeable or pleasant to watch, and does not mean that religious feelings can be made fun of at any price, that is a minor consideration in the present context ... we are on a slippery slope, with no one able to predict where self-censorship will lead. That is why Morgenavisen Jyllands-Posten has invited members of the Danish Newspaper Illustrators’ Union to draw Muhammad as they see him ...”

On 12 October 2005 the ambassadors of eleven Muslim-majority countries, referring, inter alia, to the cartoons, asked for a meeting with the Danish Prime Minister to discuss what they perceived as an “ongoing smear campaign in Danish public circles and the media against Islam and Muslims”. It appears that the government refused their request in writing, citing the following reasons:

“Freedom of expression has a wide scope and the Danish Government has no means of influencing the press. However, Danish legislation prohibits acts or expressions of opinion of a blasphemous or discriminatory nature. The offended party may bring court proceedings against the authors of such acts or expressions of opinion, and it is for the courts to decide in individual cases.”

On 29 October 2005 several Muslim organisations in Denmark reported Morgenavisen Jyllands-Posten to the Danish police, maintaining that it had violated the provisions of the Criminal Code concerning blasphemy and insult on the basis of race or religious orientation.

By a decision of 6 January 2006, the regional public prosecutor for Viborg (Statsadvokaten i Viborg) decided not to initiate criminal proceedings against the newspaper. The Muslim organisations appealed against that decision to the Director of Public Prosecutions (Rigsadvokaten), who upheld the decision on 15 March 2006, giving the following reasons.

“Decision on possible criminal proceedings in the case of Jyllands-Posten’s article ‘The face of Muhammad’

...

2. The article in Jyllands-Posten

The article in Jyllands-Posten was published in the newspaper’s Friday issue of 30 September 2005 and was advertised on the front page of the newspaper by one of the drawings from the article. The drawing was accompanied by text explaining that the newspaper had invited members of the Danish Newspaper Illustrators’ Union to draw Muhammad as they saw him; that, out of about forty illustrators, twelve had responded to the invitation; and that the drawings were published under the illustrators’ names. ... The introduction to the article is headed ‘Freedom of expression’ ... The introduction to the article reads as follows:

‘The comedian Frank Hvam recently admitted that he did not dare openly “to take the piss out of the Koran on TV”. An illustrator asked to portray the Prophet Muhammad in a children’s book wishes to do so anonymously, as do the western European translators of a collection of essays critical of Islam. A leading art museum has removed a work of art for fear of reactions from Muslims. This theatre season, three satirical shows targeting the President of the United States of America, George W. Bush, are playing, but not a single one about Osama bin Laden and his allies. Finally, during a meeting with Prime Minister Anders Fogh Rasmussen of Denmark’s Liberal Party, an imam urged the government to use its influence over the Danish media so that they drew a more positive picture of Islam.

The examples cited above give cause for concern, regardless of whether there is any foundation for people’s fears. The fact is that those fears exist and lead to self-censorship. The public space is being intimidated. Artists, authors, illustrators, translators and theatre people are therefore steering a wide berth around the most important meeting of cultures of our time – the meeting between Islam and the secular society of the West rooted in Christianity.’

The following section, entitled ‘Ridicule’, is taken from the article:

‘Some Muslims reject modern secular society. They demand special status, insisting on special consideration of their own religious feelings. This is incompatible with secular democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. It is therefore no coincidence that people living in totalitarian societies are sent to jail for telling jokes or for critical portrayals of dictators. As a rule, this is done with reference to the fact that it offends people’s feelings. In Denmark, we have not yet reached that stage, but the examples cited above show that we are on a slippery slope, with no one able to predict where self-censorship will lead. ... That is why Morgenavisen Jyllands-Posten has invited members of the Danish Newspaper Illustrators’ Union to draw Muhammad as they see him.’ ...

The twelve drawings are as follows:

Drawing 1: The face of a man whose beard and turban are drawn within a crescent moon and with a star, symbols normally used for Islam.

Drawing 2: The face of a grim-looking bearded man with a turban shaped like an ignited bomb.

Drawing 3: A person standing in front of an identity parade consisting of seven people, including a caricature of Pia Kjærsgaard [leader of the Danish People’s Party] and five men wearing turbans. The person in front of the line-up is saying: ‘Hmm... I can’t quite recognise him... ‘

Drawing 4: A bearded man wearing a turban, standing with a halo shaped like a crescent moon over his head.

Drawing 5: Five stylised female figures wearing headscarves, with facial features depicted as a star and a crescent moon. The caption reads: ‘Prophet! You crazy bloke! Keeping women under the yoke!’

Drawing 6: A bearded man wearing a turban, standing with the support of a staff and leading an ass by a rope.

Drawing 7: A man with beads of sweat on his brow, sitting under a lamp and looking over his left shoulder as he draws a man’s face with his head covered and with a beard.

Drawing 8: Two bearded men wearing turbans and armed with a sword, a bomb and a gun, running towards a third bearded man wearing a turban. He is reading a sheet of paper and gesturing them to hold off, with the words: ‘Relax folks! It’s just a sketch done by a non-believer from southern Denmark.’

Drawing 9: A teenage boy with dark hair, dressed in trousers and a striped top printed with the text ‘The Future’, standing in front of a blackboard, and indicating with a pointer the Arabic text written on it. The words ‘Mohammed, Valby School, 7A’ are written on an arrow pointing at the boy.

Drawing 10: A bearded man, standing, wearing a turban and carrying a sword; his eyes are hidden by a black bar. Standing at his sides are two women wearing black gowns, with only their eyes visible.

Drawing 11: A bearded man wearing a turban, standing on clouds with arms outspread, saying: ‘Stop, stop, we’ve run out of virgins!’ Waiting in front of him is a row of men in tatters with plumes of smoke over their heads.

Drawing 12: A drawing of a man wearing glasses and a turban with an orange in it. The turban bears the words ‘Publicity Stunt’. The man is smiling as he shows a picture portraying a ‘matchstick man’ with a beard and wearing a turban.

3. The Director of Public Prosecutions’ assessment ...

Article 140 of the Danish Criminal Code provides that any person who, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in this country is liable to a term of imprisonment not exceeding four months.

The provision is part of the rules of criminal law, the interpretation of which varies depending on what is generally considered to be accepted usage or other form of expression in Danish society. In this connection it should be noted that frank and informal debate is not unusual in Denmark, where even offensive and insulting expressions of opinion are widely accepted.

It should also be noted that, when it was adopted in 1930, Article 140 of the Danish Criminal Code was intended to afford protection in respect of the most serious offences against religious feelings; this was also implicit in subsequent debates held in the Danish parliament in 1973 and 2005 regarding the necessity for the provision. It has also been reflected in practice, as only three prosecutions have been brought for breaches of this provision since 1930, the most recent of which, in 1971, led to an acquittal.

An assessment of the drawings described above and the article in the light of the provisions of Article 140 of the Danish Criminal Code involves deciding whether they amount to mockery or scorn of Islam’s religious doctrines or acts of worship. ...

As regards ... ‘religious doctrines or acts of worship’, it should first be noted that the expressions of opinion falling within the scope of the Criminal Code cover the internal and external religious life of a religious community, that is, the doctrines (a creed, if any, and the central texts of the religion) and the institutions, practices, persons and things (ritual acts, etc.) by which the acts of worship of the community take place. However, according to the preparatory legislative material for the Criminal Code, the concepts concerned do not encompass religious feelings which are not tied to a community’s religious doctrines or acts of worship, including doctrines of an ethical or social nature or similar.

The concept of ‘mockery’ covers ridicule and is an expression of lack of respect or derision of the object of mockery. ‘Scorn’ is an expression of contempt for the object that is scorned. It must be assumed that these words imply ridicule or contempt with a certain element of abuse, just as it is clear from the preparatory legislative material for the Criminal Code that punishment can be imposed only in ‘serious’ cases.

The religious writings of Islam cannot be said to contain a general and absolute prohibition on drawing the Prophet Muhammad.

The basic assumption must be that, according to Hadith (the written narratives of the life of the Prophet and guidelines for the conduct to be observed by Muslims), there is a prohibition in Islam against depicting human figures, which also includes depicting the Prophet Muhammad. Not all Muslims comply consistently with the ban on depiction, as there are pictures of Muhammad dating from earlier times as well as the present day. However, in these cases the Prophet is depicted respectfully, in some instances without facial features.

It cannot then be assumed that a drawing of the Prophet Muhammad in general will be contrary to the religious doctrines and acts of worship of the religion as practised today, even if certain groups within the religion comply fully with the ban on depiction. For that reason alone, a drawing of the Prophet Muhammad cannot in itself constitute a violation of Article 140 of the Danish Criminal Code.

However, some of the drawings in question which, according to the headline, illustrate ‘The face of Muhammad’ are not merely a depiction of the Prophet Muhammad, but a caricature of him.

Depending on the circumstances, a caricature of such a central figure in Islam as the Prophet Muhammad may imply ridicule of or be considered an expression of contempt for Islamic religious doctrines and acts of worship. An assessment of whether this is the case must be made in the light of the text accompanying the drawings.

The article states that fear of Muslim reaction has led to self-censorship in a number of specific cases and to artists, authors and others avoiding expressing themselves about the cultural meeting between Islam and secular Western societies with their roots in Christianity. The next paragraph states first that some Muslims reject modern secular society and demand special status, insisting on special consideration of their own religious feelings. It then continues: ‘This is incompatible with secular democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. While this is not always agreeable or pleasant to watch, and does not mean that religious feelings can be made fun of at any price, that is a minor consideration in the present context.’

From the section that follows, it appears that it was on this basis that Jyllands-Posten invited members of the Danish Newspaper Illustrators’ Union to draw Muhammad as they saw him.

Based on this text, the basic assumption must be that Jyllands-Posten commissioned the drawings for the purpose of sparking a provocative debate as to whether, in a secular society, special regard should be paid to the religious feelings of certain Muslims.

The drawings referred to in paragraph 2 above as drawing 1, drawing 3, drawing 4, drawing 6, drawing 7, drawing 9, drawing 11 and drawing 12 are either neutral in their expression or do not seem to be an expression of derision or spiteful, ridiculing humour. Therefore, in the opinion of the Director of Public Prosecutions, these drawings cannot be considered to constitute criminal offences under Article 140 of the Danish Criminal Code.

Drawings 5 and 10 deal with the position of women in Muslim society and therefore relate to social conditions in those societies and the lives of their members. On this basis the drawings cannot be considered to contain expressions of opinion concerning Islamic religious doctrines or acts of worship, and consequently do not amount to punishable offences under Article 140 of the Danish Criminal Code.

The two armed figures in drawing 8 could be seen to be an illustration of an element of violence in Islam or among Muslims. However, the man standing up, who could be a depiction of Muhammad, is denying that there is any reason for anger and speaking in soothing tones, which must be taken to be a rejection of violence. Hence, this drawing cannot be considered either as an expression of mockery or scorn of Islamic religious doctrines or acts of worship; see Article 140 of the Danish Criminal Code.

Drawing 2, showing the face of a grim-looking man with a turban shaped like an ignited bomb, could be understood in several ways.

If Muhammad is taken to be a symbol of Islam, the drawing could be understood to mean that violence or bomb attacks have been committed in the name of Islam. The drawing could therefore be seen as a contribution to the current debate on terror and as an expression of the view that religious fanaticism has led to terrorist acts. Understood in this way, the drawing cannot be considered to express contempt for the Prophet Muhammad or the Islamic religion, but should be considered as an expression of criticism of Islamic groups who commit terrorist acts in the name of religion. On this basis, the drawing is clearly not in violation of Article 140 of the Danish Criminal Code.

The drawing could also be taken to depict the Prophet Muhammad as a violent person and as a rather intimidating or frightening figure.

Historical descriptions of the Prophet’s life show that, in propagating their religion, he and his followers were involved in violent conflicts and armed clashes with persons and population groups who did not join Islam, and that many Muslims and others lost their lives as a result.

Even against this historical background, a depiction of the Prophet Muhammad as a violent person must be considered an incorrect depiction if the Prophet is shown with a bomb as a weapon, which in today’s context might be understood to imply terrorism. This depiction might with good reason be understood as an affront and insult to the Prophet, who represents an ideal for believing Muslims.

However, such a depiction is not an expression of mockery or ridicule, and almost certainly not of scorn within the meaning of Article 140 of the Danish Criminal Code. The concept of scorn covers contempt and debasement, which in their usual meaning would not cover situations depicting a figure such as that shown in drawing 2, regardless of how the illustration might be understood or interpreted.

...

4. Conclusion

As is clear from points 3.2 and 3.3 ..., the Director of Public Prosecutions does not find any grounds for changing the decision reached by the regional public prosecutor for Viborg and therefore concurs in the decision, pursuant to section 749(2) of the Danish Administration of Justice Act, to discontinue the investigation with regard to Article 140 and Article 266 (b) of the Danish Criminal Code.

Although there are no grounds for instituting criminal proceedings in this case, it should be noted that both provisions of the Danish Criminal Code – and also other criminal-law provisions, for example with regard to defamation of character – place restrictions on freedom of expression. Article 140 of the Danish Criminal Code protects religious feelings against mockery and scorn and Article 266 (b) protects groups of persons against scorn and degradation on account of, inter alia, their religion. To the extent that publicly made expressions of opinion fall within the scope of these rules there is, therefore, no free and unrestricted right to express opinions about religious subjects.

In stating that it is incompatible with the right to freedom of expression to demand special consideration for religious feelings and that one has to be prepared to put up with ‘scorn, mockery and ridicule’, the article in Jyllands-Posten does not therefore accurately describe the law as it stands.”

Around this time and subsequently, the publication of the cartoons (and their reproduction in some other countries) caused international controversy, protests, demonstrations and consumer boycotts, notably in the Muslim world.

Various Muslim organisations initiated civil proceedings for defamation against Morgenavisen Jyllands-Posten before the Århus City Court (Retten i Århus) which, in a judgment of 26 October 2006, found against them.

COMPLAINTS

The applicants complained under Articles 9 and 14 of the Convention that, as Muslims, they had been discriminated against by Denmark. They further complained under Articles 10 and 17 that Denmark had permitted the publication of what the applicants considered to be offensive caricatures of the Prophet Muhammad, in particular one caricature showing him as a terrorist with a bomb in his turban.

THE LAW

The applicants complained that the publication of the cartoons in issue had breached their rights under Article 9 of the Convention taken in conjunction with Article 14 of the Convention. They also relied on Article 17, taken together with Article 10 of the Convention.

Given that the first applicant lives in Morocco and the two applicant associations are based there, the question arises whether the applicants come within Denmark’s “jurisdiction” within the meaning of Article 1, which reads as follows:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

The Court has previously stated that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.

The established case-law in this area indicates that the concept of “jurisdiction” for the purposes of Article 1 must be considered to reflect the term’s meaning in public international law. Thus, from the standpoint of public international law, the words “within their jurisdiction” in Article 1 must be understood to mean that a State’s jurisdictional competence is primarily territorial and also that jurisdiction is presumed to be exercised normally throughout the State’s territory. Only in exceptional circumstances may the acts of Contracting States performed outside their territory or which produce effects there (“extraterritorial acts”) amount to an exercise by them of their jurisdiction within the meaning of Article 1. The Court has found clear confirmation of this essentially territorial notion of jurisdiction in the travaux préparatoires, given that the Expert Intergovernmental Committee replaced the words “all persons residing within their territories” with a reference to persons “within their jurisdiction” with a view to expanding the Convention’s application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the Contracting States. Hence, this preparatory material constitutes clear confirmatory evidence of the ordinary meaning of Article 1 as already identified by the Court (see, among other authorities, Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-65, ECHR 2001-XII, and Issa and Others v. Turkey, no. 31821/96, §§ 65-71, 16 November 2004).

For instance, according to the relevant principles of international law, a State’s responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. Moreover, a State may also be held accountable for violations of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating, whether lawfully or unlawfully, in the latter State. Accountability in such situations stems from the fact that Article 1 cannot be interpreted so as to allow a State Party to perpetrate violations of the Convention on the territory of another State which it would not be permitted to perpetrate on its own territory.

Such exceptions are not in issue in the present case. Here the applicants are a Moroccan national resident in Morocco and two Moroccan associations which are based in Morocco and operate in that country. The Court considers that there is no jurisdictional link between any of the applicants and the relevant member State, namely Denmark, or that they can come within the jurisdiction of Denmark on account of any extraterritorial act. Accordingly, the Court has no competence to examine the applicants’ substantive complaints under the Articles of the Convention relied upon.

The application must therefore be declared incompatible with the provisions of the Convention and, as such, inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

BEN EL MAHI AND OTHERS v. DENMARK DECISION

The case for Anti-SLAPP suits in Australia

2010-07-20T11:33:00.000+01:00

Interesting blog post about the abuse of defamation laws in Australia, focusing on one case in which defamation laws were used to destroy a community campaign to preserve local woodland: http://brianwaltersmelbourne.blogspot.com/2010/07/slapping-on-writs.html

Namibian Supreme Court accepts defence of reasonable publication in defamation cases

2010-07-13T19:04:00.000+01:00

The Supreme Court of Namibia has recently accepted the defence of reasonable publication for defamatory statements, following the South African Bogoshi decision, the Canadian decision in Grant, the UK’s Reynolds/Jameel approach and Australia’s Theophanous approach. The Court wrote:

“[53] … the development of a defence of reasonable or responsible publication of facts that are in the public interest as proposed by the respondent (and as accepted by the High Court) will provide greater protection to the right of freedom of speech and the media protected in section 21 without placing the constitutional precept of human dignity at risk. The effect of the defence is to require publishers of statements to be able to establish not that a particular fact is true, but that it is important and in the public interest that it be published, and that in all the circumstances it was reasonable and responsible to publish it.

[54] It is clear that this defence goes to unlawfulness so that a defendant who successfully establishes that publication was reasonable and in the public interest, will not have published a defamatory statement wrongfully or unlawfully. A further question arises, however, given the conclusion reached earlier that the principle of strict liability established in Pakendorf was repugnant to the Constitution. That question is what the fault requirement is in defamation actions against the mass media. The original principle of the common law is that the fault requirement in the actio injuriarum is intentional harm not negligence, although there are exceptions to this rule. Distributors of defamatory material are liable if it is shown that they acted negligently.

[55] In Bogoshi, the South African Supreme Court of Appeal held that the media will be liable for the publication of defamatory statements unless they establish that they are not negligent. This approach is consistent with the establishment of a defence of reasonable publication and should be adopted. …

[56] The defence of reasonable publication holds those publishing defamatory statements accountable while not preventing them from publishing statements that are in the public interest. It will result in responsible journalistic practices that avoid reckless and careless damage to the reputations of individuals. In so doing, the defence creates a balance between the important constitutional rights of freedom of speech and the media and the constitutional precept of dignity."

See here for the full text: http://inforrm.wordpress.com/2010/07/10/case-law-trustco-international-v-shikongo-supreme-court-of-namibia/

It should also eventually be listed here: http://www.saflii.org/na/cases/NASC/

Ugandan High Court awards journalists damages, finds violation of constitutional rights

2010-04-20T17:47:00.000+01:00

The Ugandan High issued an interesting ruling a few weeks ago in he case of Francis Tumwekwasize, Timothy Sibasi and Ibrahim Sadik v. Attorney General. The applicants, journalists for WBS television, launched a constitutional petition in the High Court against the Attorney General for the enforcement of their rights, claiming that police had prevented them from entering a football stadium where several hundred police were living at the time and had beaten them up. The Ugandan constitution provides a special procedure for ‘enforcement of rights’ and the journalists opted to use this rather than launch an ‘ordinary’ claim of assault. After reviewing the facts, the judge overwhelmingly found for two of the applicants (the case of Mr Sadik was dismissed for lack of evidence), holding that “It sounds to me superfluous that a journalist proceeding to cover a newsworthy incident would first require permission to access the venue, in the absence of any evidence that the denial of accessibility was in the interest of public peace and order ... No evidence has been presented to court that the Stadium could not be accessed without any permission and that the applicants were aware of it. In my view the act of denying them access amounted to a breach of their freedom as journalists to inform the public as to the sanitary condition of the Stadium at the time.” The judge goes on to award the applicants USD7,500 each in damages, stating that this amount would “meet the ends of justice, especially in an environment where complaints of Police Constables being trigger-happy are on the increase. Journalists must be protected rather than harassed”.

This judgment - and especially the judge's final words - is about as clear a statement you would get from a court about the deteriorating media freedom situation in Uganda.

full judgment follows:
=========================

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGA DA AT KAMPALA

(CIVIL DIVISION)

HCT-00-CV-MC-0036-2009

1. FRANCIS TUMWEKWASIZE
2. TIMOTHY SIBASI
3. IBRAHIM SADIK
APPLICANTS

VERSUS

ATTORNEY GENERAL
RESPONDENT

RULING

The applicants brought this application by Notice of Motion under Article 50 of the Constitution and Rule 3 (1) of the Judicature (Fundamental Human Rights & Freedoms) (Enforcement Procedure) Rules, 2008 (S.l 2008 No.55) for orders of enforcement of Fundamental Human Rights and Freedoms of the applicants allegedly breached by the respondent's agents.

The details are set out in the affidavit of the first applicant, Francis Tumwekwasize. According to him, he was employed by WBS TV as a reporter since 2005. On 27/08/2008 he was assigned by the news editor of WBS to cover a story relating to the sanitary situation at Namboole Stadium. The public had raised concern that the Special Police Constables who were residing in Namboole Stadium had made the stadium unsanitary. He arrived at the Stadium at about 2.00 p.m. in the company of the 2nd and 3rd applicants wearing WBS labels and the van clearly marked WBS Television. On the way to the office of the Stadium management, the trio were accosted with shouts and alarms from several Special Police Constables who barred them from entering the Stadium on account of several newspapers having written condemning the SPCs unsanitary behavior at the Stadiurn. They retreated to their van but could not get out of the gate because the SPCs had closed it. The SPCs arrived at the van, forced it open, pulled them out and beat them with batons, kicks, sticks and metals and took away their cameras and their accessories and set their dogs at them. They were later set free but denied access to the Stadium. All this is denied by the respondent through its servant Laban Muhabwe, a Senior Superintendent of Police, who claims to have been at the Stadium at the time. It is Mr. Muhabwe's averment in the affidavit in reply that there were no Special Police Constables at Namboole Stadium at the time.

At the conferencing the parties agreed on one single point, that is, that the applicants went as journalists to Namboole Stadium on 27/08/08. The rest was disputed.

ISSUES:

Whether the applicants were assaulted, battered and molested by the respondent's agents.
Whether the acts complained of amounted to a breach of the applicants' freedom of the Press.
Whether the acts complained of amounted to cruel, inhuman and degrading treatment.
Remedies

Counsel:
Mr. Rwakafuuzi for the applicants.
Mr. Karuhanga for and on behalf of the Attorney General.

I will first deal with the objection raised by learned Counsel for the respondent based on Rule 4 of the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, 2008. This Rule provides that:
"A motion shall not be made without notice to the Attorney General and other party affected by the application."

It is the view of learned Counsel for the respondent that the only notice known at law which can be served on to the Attorney General is the Statutory Notice of forty five days; that failure to serve the notice on the Attorney General makes the application bad in law.

Learned Counsel for the applicants did not file any reply to the said objection.

I am inclined to the view that the notice to the Attorney General referred to in Rule 4 of Section I 2008 NO.55 is different from the Statutory Notice required under Section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap.72. I say so because Article 50 of the Constitution provides a relaxed procedure for enforcement of Fundamental rights and freedoms. The procedure pointed out by learned Counsel for the respondent obtains in ordinary suits on plaint under the Civil Procedure Rules.

In Dr. J. W. Rwanyarare & 2 Others vs Attorney General HCMA No.85 of 1993 High Court held that in matters concerning the enforcement of human rights under the Constitution, no statutory notice was required because to do so would result in an absurdity as the effect of it would be to condone the violation of the right and deny the applicant a remedy.

See also: Greenwatch vs Uganda Wildfife Authority & Anor HCMA No.15 of 2004.

I am of the view that a notice to the Attorney General under Statutory Instrument 2008 NO.55 is a statutory requirement whether the Attorney General has been sued or otherwise as long as the matter concerns enforcement of the fundamental rights and freedoms under Article 50 of the Constitution. It shouldn't be confused with a Statutory Notice required in ordinary suits where the notice period is intended for the purpose that the government may investigate the claim and if possible settle it out of court. For the reasons stated above, I would disallow the objection and I do so.

Issue No.1: Whether the applicants were assaulted, battered and molested by the respondent's agents.

I have already set out in detail the basis of the applicants' claim against the respondent. Mr. Tumwekwasize purports to swear the affidavit on his own behalf and on behalf of his co-applicants, Timothy Sibasi and Ibrahim Sadik. However, there is nothing on record to suggest that he was given any authority by his colleagues to do so.

The affidavit itself contains averments which should have come from the aggrieved persons themselves. For example, he alleges that the 2nd and 3rd applicants were injured when none of them has indicated so in an affidavit sworn by self. He also alleges that the 3rd applicant lost money in the scuffle and yet the alleged loser of the money has not stated so himself. However, the 1st applicant has at least attached a copy of treatment notes to his affidavit, implying that he too was injured and treated at Nsambya Hospital thereafter. Besides, there is an affidavit of Dr. Ingabire showing that she attended to the 2nd respondent at the Hospital. No such evidence is available in respect of Ibrahim Sadik.

This court is acutely aware that a person is competent to swear an affidavit on matters or facts he knows about or on information he receives and believes. And under article 50 (2) of the Constitution, any person or organization may bring an action against the violation of another person's or group's human rights. Whichever way it is done, however, there must be evidence of existence of those facts.

In the instant case, it is evident that the first applicant was at the Stadium. He claims to have been in the company of Timothy Sibasi. I have already indicated that Mr. Sibasi underwent medical treatment with the first applicant. To this extent, there is evidence on which to base the inference that Mr. Sibasi was also at the Stadium. This, however, is not so with Ibrahim Sadik who has neither made any statement on oath or given any evidence to show that he too was treated at Nsambya like his co-applicants. This is particularly important in view of Laban Muhebwa's sworn evidence that he saw two men only in a scuffle with police at the stadium. In view of this evidence and Sadik’s failure to furnish any evidence to court that he too was assaulted and battered as claimed, I'm of the view that his claim cannot stand. It ought to be struck out 3nd I do so.

As to whether Mr. Tumwekwasize and Mr. Sibasi were assaulted, I have considered the affidavit evidence of Mr. Tumwekwasize. He avers that on the way to the Stadium management, his team of journalists was accosted with shouts and alarms from several police constables. They did not stop at shouting. Several of them charged at them, surrounded them and blocked them from entering the said offices. The journalists retreated to their van but the said constables followed them there and set their dogs to bite them. This was in addition to being beaten and kicked and their cameras being taken away. On being taken to one Laban Muhebwa, he ordered that the cameras be returned to them.

Although Mr. Muhebwa denies the alleged mistreatment of the applicants in his affidavit, he does not deny seeing at least two of them at the Stadium. He confirms in paragraph 6 thereof that there was pandemonium at the Stadium and that cameras were confiscated from them. He avers in paragraph 11 that the applicants' report to him was that people who confiscated cameras from them were Special Police Constables. He admits in paragraph 12 that he ordered restoration of the cameras to them. Although he denies existence of Special Police Constables at the Stadium at the time, he does not mention in his affidavit whom he ordered to return the cameras to the applicants and why they had confiscated the said cameras from the applicants in the first instance. But he avers that the applicants exchanged words with those people and “called the police officers Iumpens'”, implying that those people who were attacked, were policemen. None of them was sworn an affidavit to show that they were ordinary police officers and not special Police Constables. Coupled with this is evidence of Dr. S. K. Kiwanuka and Dr. Prossie Ingabire that they treated these two journalists at Nsambya Hospital on the very day of the scuffle at Namboole Stadium. The medical treatment notes show what each journalist was complaining about and how they were treated.

Against all this evidence, we have evidence of Dr. Moses Byaruhanga. Whereas the incident happened in August 2008, Dr. Byaruhanga swore an affidavit on 12/10/2009, over a year later.
From his affidavit, he did not examine any of the applicants to ascertain whether or not they or any of them sustained the injuries alleged. He sat in his office, perused their treatment notes and came to the conclusion that the applicants, 1st and 2nd, were not assaulted. He has in effect rubbished the findings of his colleagues when he did not see the subject matters of those findings, the applicants themselves. I think the respondent's evidence on this point is to say the least absurd. It is of no value.

In law a fact is said to be proved when the court is satisfied as to its truth. The evidence by which that result is produced is called the proof. The general rule is that the burden lies on the party who asserts the affirmative of the issue in dispute. When that party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof: that is, the allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption.

Applying the above principle to the facts herein, it follows that the burden is on tile applicants to prove that on 27/08/08 they were assaulted, battered and molested by agents of the respondent. As between the evidence of the doctor who did not see the applicants and that of the doctors who saw and treated them, court would obviously go by the evidence of the latter. It is evidence that establishes in a material particular that the applicants were assaulted. It disproves Laban Muhebwa's assertion that they were not assaulted. The applicants have alleged that they were assaulted by Special Police Constables. I have found no evidence to prove otherwise. It is not disputed that Special Police Constables are agents of the respondent. I hold that they are. Applicants 1 and 2 have in my view discharged the burden of proof cast on them by law. On the balance of probabilities, they were assaulted, battered and molested.

I would answer the first issue in the affirmative in respect of 1st and 2nd respondent only and I do so.

Issue No.2: Whether the acts complained of amounted to a breach of the applicants' freedom of the Press.

The applicants are relying on Article 29 (1) (a) of the Constitution. Under this law every person in this country enjoys the right to freedom of speech and expression. This right includes freedom of the press and other media. The defence argument on this point is that the applicants had no rights to access the Stadium without express permission for an express purpose.

Mr. Muhabwe does not state that much in his affidavit. He wvas at the Stadium at the material time. He saw the applicants being molested.

They had identified themselves as journalists attached to WBS TV. He has not offered any explanation as to why his men opted to harass the journalists in a ruthless manner. Free press usually means the right to publish, a right to confidentiality of sources and a right to access information.

It sounds to me superfluous that a journalist proceeding to cover a newsworthy incident would first require permission to access the venue, in the absence of any evidence that the denial of accessibility was in the interest of public peace and order. If the conditions at the Stadium were unsanitary, that was the more reason why they deserved exposure for remedial purposes. No evidence has been presented to court that the Stadium could not be accessed without any permission and that the applicants were aware of it. In my view the act of denying them access amounted to a breach of their freedom as journalists to inform the public as to the sanitary condition of the Stadium at the time.

Issue No.3: Whether the acts complained of amounted to cruel, inhuman and degrading treatment.

On this point, the applicants rely on Article 24 of the Constitution. Under this law, no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.

It is noteworthy that the Consitution itself does not define the terms "torture, cruel, inhuman or degrading treatment." Courts have tried to define them depending on the context.

Learned Counsel for the applicants has drawn to my attention the opinion of one Guy Vassal Adams in connection with this case. His opinion can at best be of persuasive value. It is not evidence that the acts complained of amounted to cruel, inhuman and degrading treatment.

In Victor Mukasa & Anor vs Attorney General HCMC No. 24/06 (unreported) the trial Judge was of the view that the acts of the respondent towards two ladies amounted to torture, cruel, inhuman and degrading treatment. The ladies had suffered humiliation at the hands of LC officials and Police. Each case must of course be decided on the basis of its unique facts and circumstances. There cannot be any hard and fast rule about this. Mr. Rwakafuuzi's argument, if I have understood it correctly, is that a person's dignity is guaranteed by the Constitution and should not be injured by anyone. I accept that argument. Any injury to a person's dignity should therefore be condemned by the courts. The injured person should be compensated in damages.

I have understood the import of this application to be basically about human dignity. These are journalists who went to cover an incident in Namboole but ended up being assaulted and molested by the police in dehumanizing circumstances. It has not been argued that the treatment they received at the hands of the Special Police Constables was in public interest. In my view the acts complained of came within the meaning of cruel, inhuman and degrading treatment as stipulated in the Constitution. I so hold.

I would therefore also answer the third issue in the affirmative and I do so.

Issue No 4: Remedies

The object of an award of damages is to give the plaintiff compensation for the damages, loss or injury he/she has suffered. Money is not awarded as a replacement for other money, but as a substitute for that which is generally more important than money. It is the best that a Court can do in the circumstances of each case.

In Victor Mukasa case, supra, the second applicant was awarded Shs.l0m for torture, inhuman and degrading treatment by her Lordship Stalla Arach Amoko. In Ronald Reagan Okumu & Others vs Attorney General HCMA No. 63/2002, Kania J. awarded the applicants Shs.l0m each for violation of their rights or personal liberty. Learned Counsel for the applicants is of the view that in the present case the torture was more aggravated since it caused injuries and prayed that each applicant be awarded Shs.30m for the torture and degrading treatment. I have already indicated that the applicants were assaulted, battered and molested. In addition they were prevented from reaching the scene of their intended story or even to talk to the Stadium Management. The agents of the respondents earn no credit for such bizarre conduct on their part much as the applicants' cameras were returned to them.

Doing the best I can in the unique circumstances of this case and taking into account the procedure ad opted by the applicants of proceeding by Notice of motion instead of an ordinary suit where damages would be pleaded, strictly proved and properly assessed, an award of Shs. 15,000,000/= (Fifteen million only) to each applicant, i.e. Mr. Tumwekwasize and Mr. Sibasi, whose presence at the Stadium has been proved to the satisfaction of the court, would in my view meet the ends of justice, especially in an environment where complaints of Police Constables being trigger-happy are on the increase. Journalists must be protected rather than harassed. Each applicant's award shall attract interest of 20% per annum from the date of ruling till payment in full.

The two applicants shall also have the costs of the application.

Orders accordingly.

Yorokamu Bamwine
JUDGE
23/03/10

Mr. Rwakafuuzi for applicants
Applicants absent
Elison Karuhanga for respondent

Court:
Ruling delivered.

Yorokamu Bamwine
JUDGE
23/03/2010

English Court of Appeal blasts a path for free speech

2010-04-01T18:28:00.000+01:00

The eagerly awaited appeal judgment in BCA v. Singh was published today. It's quite a bombshell (in a good way!) - it cites Milton, refers to classic ECHR Article 10 standards, gives Orwell a nod, adopts a marketplace of ideas philosophy and concludes by proposing a bit of a rethink around the defence of fair comment.

The Lord Chief Justice is playing a blinder here.

On opinion, he says:

"The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

That is a pass to which we ought not to come again."

He goes on to say the following, about the nature of "evidence" (in the scientific sense - the case concerned allegations whether or not chiropractic works):

"What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be."

He then goes on to adopt a US marketplace of ideas standard:

"We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):

"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.""

And he concludes that the entire common law concept of 'fair comment' is in dire need of relabeling if not a wholesale rethink:

"In an area of law concerned with sometimes conflicting issues of great sensitivity involving both the protection of good reputation and the maintenance of the principles of free expression, it is somewhat alarming to read in the standard textbook on the Law of Libel and Slander (Gatley, 11th edition) in relation to the defence of fair comment, which is said to be a "bulwark of free speech", that "…the law here is dogged by misleading terminology… 'Comment' or 'honest comment' or 'honest opinion' would be a better name, but the traditional terminology is so well established in England that it is adhered to here".

We question why this should be so. The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities."

All here: http://www.bailii.org/ew/cases/EWCA/Civ/2010/350.html

Time for Strasbourg to stop the abuse of criminal libel laws

2010-03-19T14:43:00.006Z

Across Europe, criminal libel laws continue to be routinely abused to silence legitimate criticism. In its most extreme form, we see this happen in places such as Azerbaijan, where journalists are serving jail time; but in other countries, too, criminal libel laws are routinely employed against journalists. Because of the availability of prison sentences and often hefty fines, and the fact that a conviction will lead to a criminal record, these laws cast a long shadow and have a serious chilling effect on free speech.

One might have thought that the European Court of Human Rights, in its de facto role as a constitutional human rights court for Europe, would have picked up on this and have issued an unequivocal ruling stating that the use of criminal libel laws, particularly when prison sentences are available, violates the right to freedom of expression. It would be a useful ruling to issue. It has had appropriate cases before it.

Unfortunately, it has not done so. In a series of recent cases, it has come close though. In its recent decision in Gavrilovici v. Moldova (15 December 2009, Application no. 25464/05), the Court stated: "[T]he Court recalls that imposing criminal sanctions on someone who exercises the right to freedom of expression can be considered compatible with Article 10 “... only in exceptional circumstances, notably where other fundamental rights have been seriously impaired” (par. 60)

Similarly, in Bodrožić and Vujin v. Serbia (23 June 2009, Application no. 38435/05) the Court held: "[R]ecourse to criminal prosecution against journalists for purported insults raising issues of public debate, such as those in the present case, should be considered proportionate only in very exceptional circumstances involving a most serious attack on an individual’s rights (para. 39)"

And in its decision in Cumpănă and Mazăre v. Romania (17 December 2004, Application no. 33348/96), the Grand Chamber explained – in relation to the imposition of a prison sentence – that such exceptional circumstances might include “cases of hate speech or incitement to violence” (para. 115; see also Mahmudov and Agazade v. Azerbaijan, par. 50).

Also last year, the Court held in Długołęcki v. Poland (Application no. 23806/03, 24 February 2009) that “when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed” (par. 47); and see again, mutatis mutandis, Mahmudov and Agazade v. Azerbaijan, (Application no. 35877/04, 18 December 2008) para. 51).

While all these statements are helpful, in none of these cases did the Court go so far as to state that criminal libel per se violates freedom of expression. It probably wasn't necessary for it to do so on the facts before it - but it would have been useful had the Court taken a step back, assessed its backlog of Article 10 cases, realised many of them concerned criminal libel convictions and entered a categorical judgment of principle.

What the Court has done is refer to the availability of civil law remedies when it has found that the imposition of criminal sanctions on speech violated Article 10. For example, in Mahmudov and Agazade v. Azerbaijan the Court took into consideration that the criminal sanction imposed in that case “was undoubtedly very severe, especially considering that lighter alternatives were available under the domestic law” (at para. 50). And in Lyashko v. Ukraine (Application no. 21040/02, 10 August 2006), the Court held: "[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media." (par. 41f) The latter is in fact the standard Castells v. Spain statement re-hashed and with some emphasis added - but the Court could have gone much further.

There are in fact numerous cases where the Court has held that the use of civil law remedies in defamation is to be preferred over criminal law remedies (see, for example, Fedchanko v. Russia, 11 February 2010, Application no. 33333/04; Krutov v. Russia, 3 December 2009, Application no. 15469/04; Lombardo and others v. Malta, 24 April 2007, Application no. 7333/06). In Raichinov v. Bulgaria (20 April 2006, application no. 47579/99), the Court stated that "the assessment of the proportionality of an interference with the rights protected thereby will in many cases depend on whether the authorities could have resorted to means other than a criminal penalty, such as civil and disciplinary remedies" (par. 50).

Similarly, in Kubaszewski v. Poland (2 February 2010, Application no. 571/04), the Court emphasised that “the party who felt offended had recourse to means of civil law which, in the Court's view, are appropriate in cases of defamation" (par. 45).

All of this is helpful - but it stops short of what's really needed: a categorical statement denouncing criminal libel as a violation of freedom of expression. It's always a case of so close, yet so far.

The time has now come for it to make that final step. Criminal libel violates freedom of expression. Look at the annual reports of the CPJ, RSF, Article 19 and dozens other free speech groups, domestic and international. Criminal libel laws are abused to restrict legitimate journalism. The European Court is in a position to do something about it - now do it.

The case of Makarenko v. Russia will be before the Grand Chamber selection panel soon and presents an ideal opportunity. My plea to the Panel: accept the case, and let the Grand chamber issue a suitably Grand judgment and rid the continent of one of the most abused pieces of law around.

ECHR - Article 8 and reputation

2010-03-11T18:25:00.005Z

While looking for something entirely unrelated, I stumbled across the case of A. v. Norway where the Strasbourg court (uncharacteristically for a case involving Articles 8 and 10) has an attempt at legal reasoning to justify bringing reputation within the scope of the rights protected under Article 8:

"63. The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person's “honour and reputation”. However, as the Court has stated on previous occasions, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological or moral integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Raninen v. Finland, judgment of 16 December 1997, Reports of judgments and Decisions 1997-VIII, § 63) and can sometimes embrace aspects of an individual's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; for a more detailed summary of the case-law, see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 61).

64. In more recent cases decided under Article 8 of the Convention, the Court has recognised reputation (see White v. Sweden, no. 42435/02, § 26, 19 September 2006; and Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007-...) and also honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) as part of the right to respect for private life. In Pfeifer (cited above, § 35), the Court held that a person's reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004-VIII).

65. The question is whether the State has achieved a fair balance between the applicant's “right to respect for his private life” under Article 8 and the newspaper's right to freedom of expression guaranteed by Article 10 of the Convention (see Pfeifer, cited above, § 44; see also Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, with further references). In examining this question, the Court will have regard to the State's positive obligations under Article 8 of the Convention to protect the privacy of persons targeted in ongoing criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 37 above). It will also have regard to the principles established in its case-law concerning the freedom of the press to impart information on a matter of public concern, including on ongoing criminal proceedings, and the right of the public to receive such information (see, amongst other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004-XI).

66. Against this background, bearing in mind the particular nature of the conflicting interests and the importance of the interests at stake, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in assessing the need to protect the applicant's private life under Article 8 as opposed to that of safeguarding the newspaper's freedom of expression under Article 10."

This is quite interesting and one wonder what to make of the last line. Given the widespread abuse of libel laws to restrict legitimate criticism, it would be far more useful had the Court given clear guidance along the lines of "this conflict must be seen within the parameters set by Article 10" - ie any restriction imposed on speech must be justified as clearly and demonstrably necessary. No wishy-washy weighing of rights, that never works and would only encourage those who already use the libel laws as a cloak behind which to hide their corrupt activities...

UK formally abolishes sedition and criminal and obscene libel

2010-01-18T13:01:00.003Z

As reported in the Press Gazette:

"The two offences were disposed of yesterday as Section 73 of the Coroners and Justice 2009 came into effect, sweeping away the old common law offences of sedition, seditious libel, obscene libel and defamatory libel.

Justice Minister Claire Ward said: "Sedition and seditious and defamatory libel are arcane offences - from a bygone era when freedom of expression wasn't seen as the right it is today.

"Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom.

"The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.

"Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech."

The old offence of sedition - essentially an attack on the sovereign or institutions of government - included exciting disaffection against the institutions of government with an intention to incite violence or create public disorder.

Seditious libel was publishing seditious material in a written or permanent form.

As common law offences, both sedition and seditious libel were punishable with unlimited fines or imprisonment.

Defamatory libel - in effect a criminal counterpart to the civil defamation - consisted of publishing defamatory matter calculated to expose a person to public hatred, contempt or ridicule, in a permanent form.

To warrant criminal proceedings, the alleged libel had to be serious enough to justify a prosecution in the public interest.

Criminal libel originally covered four distinct categories of libel: obscenity, blasphemous, defamatory and seditious.

But obscene material is now covered by the Obscene Publications Acts of 1959 and 1964, while blasphemous libel was abolished in England and Wales by section 79 of the Criminal Justice and Immigration Act 2008.

The Law Commission provisionally recommended the abolition of the offence of sedition in 1977. In 1985 it recommended replacing the common law offence of defamatory libel with a narrowly drawn statutory offence."

This is good news. Today, the Ugandan Cosntitutional Court is hearing a challenge to that country's sedition laws. Let's hope the judges will take notice of the UK development and act likewise.

Canadian Supreme Court creates libel defence of responsible publication

2010-01-04T13:56:00.002Z

Good news from the Canadian Supreme Court:

"[126] The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where:

A. The publication is on a matter of public interest

and:

B. The publisher was diligent in trying to verify the allegation, having regard to:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff's side of the story was sought and accurately reported;

(f) whether the inclusion of the defamatory statement was justifiable;

(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

(h) any other relevant circumstances."

Grant v. Torstar Corp., 2009 SCC 61

Protection for anonymous speech on-line

2009-09-03T14:52:00.002+01:00

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.

Criminal and seditious libel – time to move on

2009-08-03T16:55:00.003+01:00

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 20^th 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 17^th 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 (www.mediadefence.org) 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 info@mediadefence.org.

[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.

[3] By Malaysian blogger Kickdefella: http://kickdefella.wordpress.com/2008/08/04/nation-in-distress/.

[4] By US-based Gambian journalist Fatou Jaw Manneh: http://www.afrol.com/articles/30350.

[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

[6] See http://www.article19.org/advocacy/defamationmap/map/.

[7] House of Lords HAnsards, 9 July 2009, col. 850: http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0013.htm.

[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

2009-08-03T10:53:00.004+01:00

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.

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

2009-07-31T13:28:00.002+01:00

The statement made in court can be found on the Schillings website: http://www.schillings.co.uk/Download.aspx?ResourceId=9266

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

2009-07-14T12:01:00.002+01:00

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. "

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

2009-07-10T18:00:00.003+01:00

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

2009-07-10T15:58:00.004+01:00

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."

Who asked for Ireland's blasphemy law?

2009-07-09T13:22:00.002+01:00

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.co.uk © Guardian News and Media Limited 2009"

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

2009-06-01T11:10:00.003+01:00

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)

Free speech vs. the jury trial system

2009-05-14T10:57:00.004+01:00

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.

Newspaper readers have Article 19 right to receive information

2009-05-08T15:18:00.008+01:00

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.

Why blasphemy laws are unnecessary

2009-04-30T10:29:00.002+01:00

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.”

http://www.publications.parliament.uk/pa/ld200708/ldhansrd/text/80305-0006.htm, column 1123

Shut the f*** up!

2009-04-29T10:45:00.003+01:00

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'

2009-04-29T10:40:00.004+01:00

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.

Privacy and defamation at the ECHR - two new cases

2009-04-28T14:13:00.003+01:00

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".

Access to Information: New Article 10 Decision

2009-04-14T16:27:00.006+01:00

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."

An ancient obstacle to free speech

2009-04-09T20:43:00.002+01:00

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.

Times v. UK: another cop out

2009-03-10T14:07:00.005Z

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:

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
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.

Google streetview privacy claim dismissed

2009-02-19T15:47:00.001Z

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.

Pakistan may abolish blasphemy laws?

2009-01-20T15:00:00.001Z

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?

http://www.crosswalk.com/news/religiontoday/11598236/

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.

Libel tourism - another case to follow

2009-01-09T14:00:00.004Z

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...

http://www.bailii.org/ew/cases/EWHC/QB/2008/3135.html

ECHR defamation cases: imprisonment & enforced apologies

2009-01-05T14:02:00.006Z

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.

South African Supreme Court of Appeal upholds constitutionality of criminal libel

2008-12-03T15:04:00.003Z

In S. v. Hoho, the Supreme Court of Appeal held that the offence had not fallen into disuse and continued to serve a purpose in democratic society. Writing for the Court, Streicher ends by quoting with firm approval from the Privy Council's holding in Worme:

"Of course, some democratic societies get along without it. But that simply shows that its inclusion is not the hallmark of the criminal law of all such societies. In fact criminal libel, in one form or another, is to be found in the law of many democratic societies, such as England, Canada and Australia. It can accordingly be regarded as a justifiable part of the law of the democratic society..."

Council of Europe Convention on Access to Official Documents

2008-12-03T14:34:00.004Z

The Council of Europe has adopted a Convention on Access to Official Documents. Cause to celebrate for the worldwide FoI movement, you'd think, but no. The Convention has been criticised for having been developed in secret, with little or no public access to the text in crucial final stages of development. The text of the Convention is also severely lacking, according to NGOs as well as to the Council of Europe's own Parliamentary Assembly who called for a redraft to broaden the scope of authorities covered, impose time limits on the handling of requests, and strengthen the nature of the review processes available to people whose access requests have been denied.

On the bright side, this is still the first international treaty to establish an unequivocal right to access documents held by public bodies, subject to fairly limited exceptions. Exceptions must be precisely laid down in law, be necessary in a democratic society and must be proportionate to the protection of

national security, defence and international relations;
public safety;
the prevention, investigation and prosecution of criminal activities;
disciplinary investigations;
inspection, control and supervision by public authorities;
privacy and other legitimate private interests;
commercial and other economic interests;
the economic, monetary and exchange rate policies of the state;
the equality of parties in court proceedings and the effective administration of Justice;
environment; or
the deliberations within or between public authorities concerning the examination of a matter.

This is as strong a statement of the right to access as you'll get anywhere(although there's an unfortunate and very silly add-on exception for States with royal families who they feel a need to exempt from the right of access altogether) and the Convention is of value for that reason alone. Time will tell how it will be implemented and whether States will focus on its strengths rather its weaknesses - but the NGO community must not neglect the Convention's strong points.

Evidence against journalists obtained through bug inadmissible, judge says

2008-11-28T15:02:00.001Z

In the Guardian today:

A journalist who was accused of obtaining police information illegally walked free from court today after a judge ruled that prosecution evidence against her was inadmissible.

Sally Murrer, a reporter on the Milton Keynes Citizen newspaper, had been due to face trial along with a former Thames Valley police detective sergeant, Mark Kearney, after he was accused of leaking information to her.

Kearney was the police officer at the heart of a row over the bugging of Labour MP Sadiq Khan in an unrelated case earlier this year.

Murrer and Kearney were due to face trial after Thames Valley Police secretly recorded conversations that took place between them in the former detective's car.

However, in a landmark ruling today, judge Richard Southwell said that any evidence gathered by police using the bug should be excluded under European laws that protected the rights of journalists and their sources.

Speaking after reporting restrictions were lifted, Murrer said: "This is a victory, not simply for me, but for all journalists. My legal team have been absolutely superb and they have fought for all of us.

"It's been a very long, horrible, nasty and vindictive case and we are all exhausted. We have done all emotions over the last 19 months, now it's just about survival."

The ruling resulted in a costly prosecution case, which relied on the recorded evidence, collapsing before a lengthy trial was due to begin at Kingston Crown Court.

Murrer, 49, was accused of three offences of aiding and abetting misconduct in a public office. She pleaded not guilty to the offences in March.

Kearney, 49, from Leighton Buzzard, had been charged with eight counts of wilful misconduct in a public office by making unlawful disclosures about confidential information between July 2006 and May 2007.

A third man, a private detective and former police officer Derek Webb, 53, from Hertfordshire, pleaded not guilty to five offences of aiding and abetting misconduct in a public office.

They were due to stand trial early next year but have been formally cleared today after their barristers successfully argued that the use of the listening device was a violation of European Human Rights law.

During a four day hearing at Kingston Crown Court this week, judge Southwell was told that under Article 10 of the law, journalists' rights to freedom of expression were protected from interference by the state.

Murrer's solicitor, Louis Charalambous of Simons Muirhead and Burton, said: "Sally Murrer should never have been prosecuted. The safeguards enshrined in law for the protection of journalists have been trampled upon by Thames Valley Police - both at the outset and when they chose to bug Sally's conversations under a warrant that failed to mention that she was a journalist and later when she was arrested and brought to a police station, where, following a strip search and a night in the cells, she faced a gruelling interrogation - while her home and office were searched, and all of her notebooks seized.

"Had the case against Sally gone ahead, it would have signalled a lurch towards a police state, a situation which is abhorrent in the minds of right thinking people."

It was disclosed in February that Kearney had bugged a meeting between Tooting MP Sadiq Khan and his constituent Babar Ahmad, who was being held at Woodhill Prison, Milton Keynes.

Kearney claimed he was pressurised by the Metropolitan Police to secretly record the meeting.

Even though Murrer's charges were not connected to the MP bugging row, she has previously said she believes it is the "missing piece" in the jigsaw puzzle of her case.

Murrer has said that she believes that concern on the part of the police that Kearney - who she describes as a friend - would blow the whistle on the Khan bugging may explain the investigations into both of them, launched last year.

The National Union of Journalists, which had been backing Murrer, said Thames Valley police and the Crown Prosecution Service should be made to answer for the costly failed prosecution.

Jeremy Dear, the NUJ general secretary, said: "This is a major victory, not just for Sally but for all journalists. This case was yet another example of members of the police force believing they were above the law, able to trample over well-established journalistic rights and freedoms.

"Let's be clear, this was an attempt to make a criminal out of a journalist for receiving information that the state didn't want to get out. It was a misguided prosecution that sought to punish Sally for simply doing her job.

"This judgment sends a clear message to the authorities: they must recognise the importance of free and open journalism. Hard questions must now be asked of the police and CPS as to why these costly proceedings were allowed to get so far."

What price privacy?

2008-11-25T11:41:00.001Z

The European Court of Human Rights' latest judgment in an Article 8 vs. Article 10 case raises an interesting question: what price privacy? Local courts awarded just under €3000 for an admittedly pretty egregious attack on privacy; the European Court said 'not enough' and found a violation of the applicant's right to private life. The judgment makes interesting reading and raises several questions - not just what is the appropriate price for a breach of medical privacy, but also whether a true statement of fact can be defamatory (something which Zagrebelsky, dissenting, seems to think but which the Court omits to discus). Even more interesting is that Popovic and Tsotsoria concur in the substance of the finding, but then dissent from the damages awarded by the European Court - €6500 - on the ground that this is too high.

Dutch abolish crime of blasphemy

2008-11-03T13:41:00.006Z

The Dutch cabinet has reportedly voted to abolish the crime of blasphemy. It is a bit of a double-edged sword, however, as in its place it proposes to introduce new criminal restrictions on insulting people for their religious convictions. This 'cure' may be worse than the malady; given the number of thin-skinned religionists in the Netherlands (as elsewhere) today, it's a sure bet that there will be more than a few requests for prosecution...

Raja Petra update

2008-10-29T12:05:00.002Z

Raja Petra, a Malaysian on-line magazine editor, has been charged with sedition as well as under the Internal Security Act for a piece that he wrote back in April alleging the involvement of the deputy prime minister in a murder case. He is currently detained under the ISA.A habeas corpus application asking for his release will be decided on November 7, but even if he is freed then his sedition trial is set to continue November 10. In a piece that he wrote in another online publication, Access Malaysia, he describes this as the government taking out a double insurance policy to make sure he is kept behind lock and key.

A group of media defense lawyers from the region are cooperating in his defence. Malik Imtiaz is acting for Raja Petra (see here for his blog report on the hearing of 22nd October). The IBA sent observers to his habeas corpus hearing - George Hwang, from Singapore, was one of them. H.R. Dipendra, another Malaysian lawyer, was instructed by the Media Legal Defence Initiative (the new organisation set up to support media defence litigation) and SEAPA to also attend as 'watching brief' counsel and submitted a statement international human rights standards on administrative detention.

Buying at gunpoint

2008-10-28T13:40:00.004Z

There have been reports recently of military or armed police buying at gun-point all copies of a newspaper that for some reason they don't wish to see the light of day. While one reaction to that might be to print more copies and continue selling them to the police, this may not always be possible and the practice does result in the public not getting the news. It's an unusual form of censorship and there is some US case law on it - surprisingly recent in fact - but I wonder if this issue has been litigated in other countries.

Testifying for media freedom - but at what price

2008-10-24T17:42:00.006+01:00

CPJ have done a great story on one of the key witnesses in the Chief Manneh case at the ECOWAS Court of Justice. It's both impressive and disturbing - having given evidence against the Gambian government, Ousman Darboe has had to give up his job and his life in the Gambia and is now in what amounts to a witness protection programme in the United States, with his wife and children. It's a stark illustration of the difficulties encountered in bringing impunity cases, and something not to be ignored. It raises a legitimate question: was this too high a price for getting a judgment against the Gambia? Perhaps not - the Manneh case set an important standard and helped put the ECOWAS court on the map as a realistic avenue for redress for human rights abuses - but the price paid by witnesses is an important factor to take into account.

Recent trends in Strasbourg caselaw - freedom of expression in decline?

2008-10-22T12:14:00.005+01:00

I took part in a conference at the European Court of Human Rights last week to discuss what the organisers described as 'recent restrictive trends in Article 10 case law'. It was a concern close to my heart - I've been worried about it ever since the Pedersen case went the 'wrong' way - and one that it turned out is shared by a great many media law practitioners. Cases such as Lindon, Stoll, Flux (no. 6) v. Moldova, Schmidt v. Austria, Rumyana Ivanova v. Bulgaria, Tara and Poiata v. Moldova and Hachette Filipacchi v. France are just a few of the judgments issued in the last year which I believe wrongly favour personality rights and interests over the right to freedom of expression.

My concern with recent restrictive case law of the European Court of Human Rights on Article 10 is not only that it sets a poor precedent within the Council of Europe area, but that it may also influence negatively legal developments in other parts of the world. For example, there has been recent litigation in South Africa and in Indonesia challenging criminal libel laws in these countries. There are good reasons to support de-criminalisation in both countries and we advised lawyers acting for the plaintiffs on ‘classic’ ECHR Article 10 case law to support their challenge. Unfortunately, lawyers acting for the government were able to rely on some of the Court’s newer cases and defeated the challenges. This is just one example of the unfortunate ‘external’ influence of restrictive ECHR case law.

The keynote speaker at the conference, Judge Rozakis, did not think that a restrictive ‘trend’ could be identified in the Court’s recent Article 10 decisions. He argued that decisions such as Stoll v. Switzerland and Lindon and others v. France are to be seen as accidents, temporary dips, in an otherwise consistently liberal line of cases. Although I would very much like to agree with him, I’m afraid that I cannot. While the Von Hanover decision ought perhaps to be distinguished on its facts, and Stoll possibly was an ‘accident’, a review of the Court’s case law of the last 12 months or so reveals a string of decisions that reveal a (sometimes very) restrictive interpretation of the right to freedom of expression - see the string I cite above, and that's just a few of them. Recently, even in cases where the Court does find a violation of the right to freedom of expression, for example in Vajnai v. Hungary in which the applicant had been convicted for doing no more than wearing a red star, it is almost apologetic in holding so.

There seems to have been a fundamental shift in the Strasbourg Court's attitude to the relationship between free expression and personality rights. In previous cases - Lingens being the ultimate example - the Court would take a principled stance and defend the free circululation of information over a degree of harm to the personality rights of public figures. With Lindon, this seems to have gone - Gavin Millar, one of the speakers, spoke of the 'spirit of Lingens' being missing from the Court's recent case law.

One of the main reasons for this shift, I think, is very simply the poor reputation that journalism has among members of the Court. Consider the concurring opinion issued by Judge Loucaides – who has long been in favour of stronger protection for personality rights – in Lindon:

“[T]he case-law on the subject of freedom of speech has on occasion shown excessive sensitivity and granted over-protection in respect of interference with freedom of expression, as compared with interference with the right to reputation. Freedom of speech has been upheld as a value of primary importance which in many cases could deprive deserving plaintiffs of an appropriate remedy for the protection of their dignity … This approach cannot be in line with the correct interpretation of the Convention.
…
[T]he mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally or occasionally, even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. Such restraint should include the duty to investigate defamatory allegations before rushing into print and the obligation to give an opportunity to the persons affected by their defamatory stories to react and give their own version. Furthermore they should remain legally accountable to the persons concerned for any false defamatory allegations. Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.”

While the majority judgment isn’t as direct as this, I think it has been strongly influenced by this sentiment. What is particularly interesting is that Judge Loucaides issued a similarly worded statement in his dissent in the Commission's report in Bladet Tromsø A/S and Pål Stensaas v. Norway, in 1998. He was in the minority then; now, ten years later, it seems the Court has come around to his point of view. Judge Loucaides has since retired but I am concerned that his spirit is present in many of the judgments we are discussing today – while the spirit of Lingens identified in Gavin Millar’s paper and evident in previous case law seems to be missing in action.

Judge Loucaides is right to observe that the Court has in the past strongly protected the right to freedom of expression. But there always have been and continue to be very good reasons for that. Privacy and libel laws have historically been relied on by the rich and powerful to hide corrupt practices and suppress legitimate criticism of them. Unfortunately, that practice remains a reality in many Council of Europe countries. Only the day before the conference, on 9 October 2008, the Slovenian Prime Minister requested that the state prosecutor’s office initiate criminal defamation proceedings against a Finnish journalist in ‘response’ to allegations of corruption made by him. In any democracy, such allegations are properly discussed and debated through the media, particularly when the target of the allegations is the prime minister and has ample access to radio, television and print media. To allow instead the state prosecutorial machinery to be brought to bear against journalists in a criminal libel action has an extremely detrimental effect on freedom of expression and basic democratic values. This is only one example of such a case; a brief trawl through the news archives reveals many similar instances of abuse of criminal as well as civil libel and privacy laws.

A related development is the Court's recent insistence on 'moderation of language' in public debate. ‘Classic’ ECHR case law such as Handyside v. the UK emphasises that the right to freedom of expression “is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” Moreover, it is well-established – until recently, that is – that “[j]ournalistic freedom … covers possible recourse to a degree of exaggeration, or even provocation.” Classic ECHR case law interprets this to mean, for example, that the media are free to use hyperbole, satire or colourful imagery to convey a particular message. The choice as to the form of expression is up to the media. For example, the Court’s classic case law will not criticise a newspaper for choosing to voice its criticism in the form of a satirical cartoon and – it has urged – neither should national courts.

Recent case law appears to be departing from this. In Lindon, a case in which a novelist had used harsh words in a novel concerning Jean-Marie Le Pen, an right wing politician convicted of inciting race hatred, rather than pointing to the extreme opinions routinely voiced by Le Pen and his string of convictions for inciting racial hatred the Court demands instead that the applicant should have “abide[d] by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention.” Contrast this with the Court’s ‘classic’ approach, in cases such as Oberschlick v. Austria (No. 2). In that case, it was considered legitimate for the applicant to have used strong and provocative language in response to a politician who himself was similarly outspoken. As a Grand Chamber judgment, I fear that Lindon will be seen as setting the new benchmark and that Oberschlick (No. 2) is relegated to the dustbin.

The Court’s recent judgment in Leroy v. France goes even further and finds that a provocative cartoon of the attack on the Twin Towers accompanied by the text “we all dreamed of it … Hamas did it” could be punished under anti-terrorist laws even when there was neither intent to incite violence nor any clear risk thereof. It is extremely difficult to see how this can be squared with the Court’s string of Turkish cases in which it routinely found that even in a situation of near-civil war, States still needed to exercise caution in resorting to the criminal law to suppress speech and would not allow the suppression of poetry that glorified violence so long as it did not incite it.

So where does all of this leave us, and where will the Court go from here? In his dissent in Flux v. Moldova (No. 6), Judge Bonello issued a stark warning:

I fear this judgment has thrown the protection of freedom of expression as far back as it possibly could. Journalists have been told what to expect if they publish anything disturbing to the authorities, however pressing the social need and sufficient the factual basis are, if their professional behaviour leaves anything to be desired. Even if alarming facts are sufficiently borne out by evidence, in the balancing exercise to establish proportionality, disregard for professional norms is deemed by Strasbourg to be more serious than the suppression of democratic debate on public corruption. To put it differently, in the Court's view the social need to fight poor journalism is more pressing than that of fighting rich corruption. The 'chilling effect' of sanctions against press freedom dreaded by the Court's old case-law has materialised through the Court's new one.

I for one am concerned that Judge Bonello may very well be right. We heard at the conference that media lawyers are no longer sure how to advise their clients; this cannot but be bad for democracy and society as a whole. Those paragraphs in the Court’s ‘old’ case-law about the importance of freedom of expression in a democracy and the media’s role as watchdog of democratic society contained wise words that deserve better than to be quoted in the first few paragraphs of a judgment only to be ignored later on. The Court’s recent case law has a very serious impact on media freedom and, as a result, on the ability of the media to publish on matters that are of concern to us all. The media must be allowed to continue in its function as watchdog of democratic society, and for this to happen, the Court must reclaim its status of a beacon for the protection of human rights and democratic society. This will be to the ultimate benefit not only of Europeans, but all those who have traditionally looked to the Court for guidance and inspiration on matters of human rights.

Mosley takes privacy application to Strasbourg

2008-10-08T18:36:00.002+01:00

Max Mosley has lodged an application with the European Court of Human Rights in Strasbourg asking for a ruling on the point of principle that newspapers should notify subjects of their stories prior to publication to allow them time to seek an injunction. If accepted, thsi would be tremendously detrimental to freedom of expression and the ability of both media and NGOs to report on issues of public interest. Watch this space...

House passes libel tourism bill

2008-10-01T09:54:00.003+01:00

In the shadow of the economic crisis, the US House of Representatives has passed a libel tourism bill. Good stuff.

Malaysian bloggers: one freed, one behind bars for two years

2008-09-25T11:48:00.002+01:00

The Herald Tribune reports that Syed Azidi Syed Aziz, who writes Kickdefella, has been freed from detention. He had been arrested and investigated for sedition after publishing a picture of the Malaysian flag upside down as a form of protest.

Meanwhile....

Raja Petra has been arrested and is facing two years detention under the Internal Security Act - he's a national security risk, apparently. The man is clearly not and his detention is clearly politically motivated. A habeas corpus petition for his release will be filed soon.

Ex-Thai PM Samak sentenced to jail for defamation

2008-09-25T11:43:00.001+01:00

Even allowing for the politics involved in this case, this is an extremely harsh sentence:

http://in.reuters.com/article/worldNews/idINIndia-35640720080925

Ex-Thai PM Samak sentenced to jail for defamation
Thu Sep 25, 2008 12:25pm IST

BANGKOK (Reuters) - Thailand's Court of Appeals confirmed a two-year jail term for defamation on former Prime Minister Samak Sundaravej, who stepped down earlier this month after another court found him guilty of a conflict of interest.

A judge reading the verdict on Thursday said there was no reason to suspend jail terms handed down by the Criminal Court, which had found Samak and co-defendant Dusit Siriwan guilty of defaming a former deputy governor of Bangkok in 2006.

"After considering what the defendants have done, there is no reason to withhold their penalty," the judge said.

Samak showed no emotion when the verdict was announced and slipped out of court through a side door, avoiding the hundreds of journalists waiting at the main gate.

He was freed on 200,000 baht ($6,000) bail while waiting for a decision on an appeal request, lawyer Prachum Thongmee told reporters.

"We are trying to get permission from either the court or the attorney-general to appeal to the Supreme Court within the legal window of 30 days," Prachum said.

Samak is still a member of parliament, so parliamentary privilege should allow him to stay out of jail until the end of the House of Representatives session in November.

The lawsuit was a crucial factor behind the decision of many MPs in the ruling People Power Party to ask Samak, their party leader, not to run for prime minister again after he was forced to step down.

Plaintiff Samart Rachapolrasit, who was the subject of slanderous remarks by Samak in two TV shows, said he would also seek 100 million baht ($3 million) compensation from Samak in the Civil Court.

"The wheel of karma has taken its course and I will not bow to any request for compromise," Samart told reporters after the verdict.

former president of Taiwan cleared of libel

2008-09-10T12:31:00.001+01:00

Nothing precedent-setting here, I don't think, but this might still be a useful case to cit ein other places in the region:

http://www.radioaustralia.net.au/news/stories/200809/s2360213.htm?tab=latest

"A Taiwan court has cleared the former president, Chen Shui-bian, of defamation charges over allegations that the military had received kickbacks in a deal to buy six French-made Lafayette-class frigates in 1991.

Five retired officials had sued Mr Chen for alleging in 2005 they had taken $US20 million in kickbacks in connection with the controversial deal.

In dismissing the case, the Taipei district court said the deal was a public matter which should be subject to scrutiny.

Two lawmakers from the pro-independence opposition Democratic Progressive Party were also cleared of the same charges.

A 2001 French judicial probe on the $2.8 billion deal claims much of the money paid by Taiwan went towards commissions to middlemen, politicians and military officers in Taiwan, China and France."

full text of Indonesian Constitutional Court judgment upholding constitutionality of criminal libel

2008-09-04T11:45:00.002+01:00

Number 14/PUU-VI/2008

PRO JUSTITIA BASED ON THE ONE SUPREME GOD

CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

[1.1] Hearing, trying, and judging the constitutional cases at first and final instances, has passed judgment in a case of Petition for Review of Penal Code against the Law of the State of the Republic of Indonesia Of 1945, instituted by:

[1.2] 1. Risang Bima Wijaya, S.H., born in Bangkalan, October 5, 1973, Moslem, General Director of Radar Jogja, Indonesian national, having his address at Perum Griya Abadi Number 1-2 RT.004, RW.001 Desa (Village) Bilaporah, Kecamatan (Sub-district) Socah, Kabupaten (District) Bangkalan, East Java Province;

Hereinafter referred to as ----------------Petitioner I;

2. Bersihar Lubis, born in Gunung Tua Tapanuli Selatan, February 25, 1950, Moslem, Journalist/columnist, Indonesian national, having his address at Perum Depok Maharaja Blok D Number 06 RT.04/15 Kelurahan (Village) Rangkapan Jaya, Kecamatan (Sub-district) Pancoran Mas, Kota (Municipality) Depok;

Hereinafter referred to as --------------Petitioner II;

By virtue of a Special Power of Attorney dated March 19, 2008 and March 24, 2008, the abovementioned Petitioners empower Hendrayana, S.H.; Sholeh Ali, S.H.; Muhammad Halim, S.H.; Anggara, S.H.; Mimi Maftuha, S.H.; Adiani Viviana, S.H.; Irsan Pardosi,S.H.; Bayu Wicaksono, S.H.; Nawawi Bahrudin, S.H.; Endar Sumarsono, S.H.; respectively acting as advocates/ General Lawyers and Assistants to Advocates/ Assistants to General Lawyers of Office of Press Legal Assistance having its address at Jalan Prof. Dr. Soepomo, S.H., Komplek Bier Number 1 A, Menteng Dalam, Jakarta Selatan – 12870, in this case acting severally and jointly for and on behalf of the principals;

Hereinafter referred to as --------------------- Petitioners;

[1.3] Having read the Petitioners’ petition;

Having heard and read the Petitioners’ statement;

Having heard and read the statements of the Government and the Penal Code Formulating Team;

Having heard and read the statement of the Parties Related To Press Board;

Having heard and read the statement of the Parties Related To Independent Journalist Alliance;

Having read the statement of the Parties Related To Indonesian Journalist Association;

Having heard the statement of the Parties Related To Indonesian Television Journalist Association;

Having heard and read the statement of the experts of the Petitioners;

Having heard and read the statement of the witnesses of the Petitioners;

Having heard and read the statement of the experts of the Government;

Having examining the exhibits presented by the Petitioners;

Having read the written statement ad informandum of Indonesian Anti Corruption People’s Movement and Legal Assistance and Human Rights Association;

Having read the conclusion of the Petitioners;

3. LEGAL CONSIDERATIONS

[3.1] Considering that the aim and objective of the petition a quo are to test the constitutionality of Article 310 paragraphs (1), (2), Article 311 paragraph (1), Article 316, Article 207 of Penal Code (hereinafter referred to as Penal Code) against the Constitution of the State of the Republic of Indonesia Of 1945 (hereinafter referred to as the Constitution 1945).

[3.2] Considering, before considering the point of consideration, the Constitutional Court (hereinafter referred to as Court) first of all has to consider:

1. Whether or not the Court is competent to hear, try, and judge the petition a quo;

2. Whether or not the Petitioners have legal standing to serve as the Petitioners in the petition a quo.

Concerning the same, the Court is of the opinion that:

The Court’s Competence

[3.3] Considering that pursuant to Article 24C paragraph (1) of the Constitution 1945 juncto Article 12 paragraph (1) of Law Number 4 Of 2004 on Judicature Authority (State Gazette of the Republic of Indonesia Of 2004 Number 8, Supplement to State Gazette of the Republic of Indonesia Number 4358) and Article 10 paragraph (1) of Law Number 24 Of 2003 on Constitutional Court (State Gazette of the Republic of Indonesia Of 2003 Number 98, Supplement to State Gazettee of the Republic of Indonesia Number 4316, hereinafter referred to as Law on Constitutional Court), the Court is competent to try at the first and final instances whose judgment is final in nature for, among others, reviewing the Constitution 1945.

[3.4] Considering that the petition a quo is the petition for reviewing the law, in casu Penal Code, against the Constitution 1945. therefore, the Court is competent is hear, try, and judge the same.

Legal Standing of the Petitioners

[3.5] Considering that Article 51 paragraph (1) of Law on Constitutional Court indicates that the Petitioners are parties considering that their constitutional rights and/or competence are harmed by the effectiveness of the law, namely:

a. Indonesian national;

b. traditional law community unit as long as it still exists and complies with the social development and the principle of the Unitary State of the Republic of Indonesia stipulated in law;

c. public or private corporate body; or

d. state institution.

Therefore, to accept a party’s legal standing in a request for reviewing a law against the Constitution 1945, the party should first of all:

a.explain his/her capacity whether or not he/she is an Indonesian national, traditional law community unit, corporate body, or state institution;

b.explain the loss of his/her constitutional rights and/or authorities in a capacity as referred to in the point a.

[3.6] Also considering, as of Judgment Number 11/PUU-V/2007 dated September 20, 2007, and any further judgments, the Court is of the opinion that the following requirements shall be fulfilled to say that there is a loss of constitutional rights and/or authorities:

a. there are constitutional rights and/or authorities of the Petitioners conferred upon by the Constitution 1945;

b. the Petitioners consider that their constitutional rights and/or authorities are harmed by the effectiveness of the constitution of which the review is petitioned;

c the constitutional loss shall be specific and actual or at least potential in nature that will certainly occur according to the proper reasoning;

d. there is the causal verband between the loss and the effectiveness of the constitution of which the review is petitioned;

e. there is a possibility that with the granting of the petition, the constitutional loss as alleged will not or does not occur anymore;

[3.7] Considering that the Petitioners, both the Petitioner I and the Petitioner II have explained their respective capacities as follows:

1.The Petitioner I, Risang Bima Wijaya, S.H., is an Indonesian national having the journalist profession;

2.The Petitioner II, Bersihar Lubis, is an Indonesian national having the columnist/journalist profession.

With the statement of the Petitioners as described in the items 1 and 2, the Petitioners fulfil one of the requirements to institute the petition for reviewing the law as referred to in the Article 51 paragraph (1) of Law on Constitutional Court. Thing that should be further considered by the Court is whether or not in such capacities the constitutional right of the Petitioners is harmed by the effectiveness of Article 310 paragraphs (1), (2), Article 311 paragraph (1), Article 316, and Article 207 of Penal Code;

[3.8] Considering that in considering its constitutional loss in consequence of Article 310 paragraphs (1) and (2), Article 311 paragraph (1), Article 316, Article 207 of Penal Code, as completely contained in the section of Casus Positio of this judgment, the Petitioners present the argumentation principally indicating as follows:

[3.8.1] Petitioner I

a.That, the Petitioner I, Risang Bima Wijaya, S.H., as the journalist, wrote a news in Radar Jogja Daily on sexual harassment committed by Soemardi Martono Wonohito, the Manager of Kedaulatan Rakyat Daily Newspaper/the Director of BP SKH of Kedaulatan Rakyat Yogyakarta. The news, according to the Petitioner, is intended to give the information on the case committed by the quite famous community figure. In writing the news, the Petitioner I reported the fact and mentioned the clear resource persons as well as tried to confirm to Soemardi Martono Wonohito, by phone, letter, and even by coming directly to the office of the relevant party;

b.That, in consequence of the news as described in the point a, the Petitioner I was complained to the Police on a charge of defamation. Further, the Petitioner I was remanded to the court on the first charge of violating Article 311 paragraph (1) juncto Article 64 paragraph (1) of Penal Code or the second charge of violating Article 310 paragraph (2) juncto Article 64 paragraph (1) of Penal Code or the second charge of violating Article 310 paragraph (1) juncto Article 64 of Penal Code;

c.That, by the court, the Petitioner I was judged to be guilty of legally and convincingly committing insult and defamation criminal act as stipulated in Article 310 paragraph (2) juncto Article 64 paragraph (1) of Penal Code, where the judgment has had a permanent force of law (Exhibits P-7, P-8, P-9);

d. That, the Petitioner I considers that his constitutional right guaranteed by Article 28E paragraphs (2) and (3), and Article 28F of the Constitution 1945 is harmed by the effectiveness of imprisonment in Article 310 paragraph (1), Article 310 paragraph (2), and Article 311 paragraph (1) of Penal Code.

[3.8.2] Petitioner II

a. That, the Petitioner II, Bersihar Lubis, a columnist and journalist, wrote an article in Tempo Newspaper opinion column on March 17, 2007 entitled “Story of a Stupid Interrogator”. This Petitioner II’s opinion relates to the prohibition of circulation of lesson text books of Junior High School and Senior High School by the Attorney General on March 5, 2007 for not containing the history of Revolt of Indonesian Communist Party (PKI) in Madiun in 1948 and that in 1965;

b. That, according to the Petitioner II, in addition to the pros and cons of the prohibition by the Attorney General, the article was also encouraged with a question on whether or not the prohibition has been based on the scientific study of the historians or is just a power;

c. That, the Petitioner II took the opinion entitled “The Story of a Stupid Interrogator” from the story of Joesoef Isak written in Medium Magazine upon speaking on “Indonesian Literature Day” in Paris in October 2004 where at that time he told about an event when he was interrogated by the Attorney General for publishing the books of Pramudya Ananta Toer;

d. That, in consequence of the article, the Petitioner II was tried and imprisoned for one month with a probationary period of three months by the District Court of Depok because his article proves to insult the public ruler as referred to in the Article 207 of Penal Code (Exhibit P-20);

e. That, based on the description in points a through d, the Petitioner II considers that the effectiveness of imprisonment contained Article 310 paragraph (1), Article 316, and Article 207 of Penal Code harms his constitutional rights and contravenes Article 27 paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945.

[3.9] Considering that based on the description in the above paragraphs [3.7] and [3.8], the Court is of the opinion that the Petitioner I and the Petitioner II fulfil the requirements of legal standing to serve as the Petitioners in the petition a quo. Therefore, the Court shall further consider the point of the petition.

Point of the Petition

[3.10] Considering that the point of the petition and the constitutional issue of the petition a quo is whether or not the imprisonment as contained in Article 207, Article 310 paragraphs (1), (2), Article 311 paragraph (1), and Article 316 of the Penal Code is constitutional. The Articles in the Penal Code read as follows:

• Article 207 of Penal Code, “Anyone who deliberately insults the existing ruler or corporate body in Indonesia orally and writing shall be threatened with the maximum imprisonment of one year or the maximum penalty of three hundred rupiah”;

• Article 310 paragraph (1) of Penal Code, “Anyone who deliberately attacks someone’s honour or reputation, by accusing him/her of committing something, for people cognizance, shall be threatened, due to the vilification, with the maximum imprisonment of nine months or the maximum penalty of three hundred rupiah”;

• Article 310 paragraph (2) of Penal Code, “If it is made by an article or picture so broadcasted, showed or stuck before the public, the guilty person shall, due to the written vilification, be threatened with the maximum imprisonment of one year and four months or the maximum penalty of three hundred rupiah”;

• Article 311 paragraph (1) of Penal Code, “If someone who commits the vilification or the written vilification, is allowed to prove that the accusation is not true and proven and the accusation contravenes what is known, he/she/they shall due to the slander, be threatened with the maximum imprisonment of four years”;

• Article 316 of Penal Code, “The imprisonment or penalty stipulated in the previous articles in this chapter can be added one-thirds if the insulted person is an official implementing his/her lawful assignment”.

The Petitions allege that the Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1) of the Penal Code violate Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945. They also allege that Article 207 and Article 316 of the Penal Code contravene Article 27 paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945. While, Article 27 paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945 respectively read as follows:

• Article 27 paragraph (1) of the Constitution 1945, “All citizens have equal position before the law and government and shall hold high the law and government, nothing excepted”;

• Article 28E paragraph (2) of the Constitution 1945, “Each person shall be entitled to freedom of belief, mind and attitude, conscientiously”;

• Article 28E paragraph (3) of the Constitution 1945, “Each person shall be entitled to freedom to unity, gathering, and expression of opinions”,

• Article 28F of the Constitution 1945, “Each person shall be entitled to communicate and receive any information to develop their social personality and environment, and find, obtain, have, keep, process, and submit any information by using all types of channel available”;

[3.11] Considering, further, to support their allegations, in addition to submitting the written exhibits, the Petitioners also present the witnesses and experts whose statement is heard before the Court and/or who gives the written statement, as completely read in this section of Casus Positio. The witnesses and experts principally state as follows:

[3.11.1] The Petitioners’ Witness, Kho Seng-Seng

In a hearing on June 24, 2008, the witness stated that he wrote a reader’s letter in a national daily telling a deception by PT. Duta Pertiwi Tbk., developer. The developer then objected the same by the same media and compelled the witness but the witness holds out. Then, he wrote another reader’s letter in two daily newspapers telling the threat by the developer (PT. Duta Pertiwi Tbk) to thousands of buyers of kiosks. This reader’s letter was then objected again by PT. Duta Pertiwi Tbk. Based on the both reader’s letters, the witness was complained by PT. Duta Pertiwi Tbk to the Headquarter of Indonesian Police on three charges: insult, defamation, and uncomfortable deed, as stipulated in Articles 310, 311, and 335 of the Penal Code.

[3.11.2] The Petitioners’ Witness, Ahmad Taufik

In a hearing on July 23, 2008, the witness stated that he and his friend, Teuku Iskandar Ali, being the journalists of Tempo Magazine, were charged by the District Attorney General of Jakarta Pusat based on Article 311 paragraph (1) and Article 310 paragraph (1) of the Penal Code in relation to his journalistic article in Tempo Magazine, March 3/9, 2003 edition, entitled “Is There Tomy at Tenabang?”. The witness is considered to have committed an action to disseminate a false news or information, deliberately made a disturbance, and soiled Tommy Winata’s reputation. Due to the charges, the witness does not focus on his work, is refused by important resource persons, the witness’s family is terrorized, and the witness feels that his movement to find some news is limited.

[3.11.3] The Petitioners’ Expert, Heru Hendratmoko

The Expert Heru Hendratmoko, in a hearing on June 24, 2008 stated:

o That, according to the expert, as of the 1998 reform, press freedom index in Indonesia declines to rank 100 of approximately 150 countries so surveyed. The threats to the press freedom come from, among others, articles of the Penal Code on insult and defamation. By the articles whose interpretation is highly subjective according to the expert, many journalists are threatened with police or judiciary interrogation and further brought to justice as if criminals;

o That, according to the expert, the articles in the Penal Code are elastic articles that hurt the ideal toward a democratic and just nation-state, moreover the Constitution 1945 guarantees and protects the freedom of receiving and giving information;

o That, according to the expert, the articles on insult and defamation may not be imposed on any journalist performing their journalistic tasks. As long as the news is in the public interest domain, the journalists and media disseminating the news shall be protected.

[3.11.4] The Petitioner’s Expert, Atmakusumah Astraatmadja

The expert Atmakusumah Astraatmadja, in a hearing on July 23, 2008, stated:

o That, according to the expert, considering the democratic development, it is considered improper, even unreasonable, to pass impose a high imprisonment and penalty on those creating creative works, such as journalistic works, opinions, or expressions or press freedom being an integral part of freedom of expression and expression of opinions;

o That, according to the witness, the imposition of a high imprisonment or penalty on journalists due to their journalistic works demonstrators, speakers in discussions does not comply with the international standard on freedom of expression and expression of opinions. Therefore, some countries have eliminated the criminal provisions on defamation, insult, slander, and false news, on the following grounds: (i) they are factually hardly proven as they are frequently opinions, not statement of the fact; (ii) their nature highly depends on the subjective feeling and opinion; (iii) thereby being multi-interpretable; (iv) not resulting in a permanent damage. In case of journalistic works, ”the temporary loss” due to press news can always be improved by a soon improvement, such as clarification, confirmation, correction, right of correction, and right of answer;

o That, according to the expert, some countries require that the elimination of criminal provisions also apply to the press as long the journalistic works are made in a good faith and in the public interest. Some countries amend the criminal provisions to civil provisions with proportional penalty for: (i) not complicating the life or bankrupting a company; (ii) for not putting the fear of expression or expression of conviction and attitude;

o That, according to the expert, it is about the time form Asian Court of Human Rights, if appeal procedures are not effective to guarantee the freedom of expression, including the freedom of press and freedom of expression of opinions considering the frequent imposition of penal and civil sanction in the form of a high compensation on a journalistic work;

o That, according to the expert, historically, theoretically, and factually, it proves that articles containing threats of penal to any actions considered to insult the Government are anti democracy and used by the Government of Indonesia to kill the social criticism and control.

[3.11.5] The Petitioner’s Expert, Nono Anwar Makarim

The Expert Nono Anwar Makarim, in a hearing on July 23, 2008, stated:

o That, according to the expert, insult and defamation crimes originated from the 13th century in England intended to maintain the public order, where a harmed person considers that he/she has to challenge the insulter thereby resulting in a disturbance. Therefore, in 1275, a provision called scandalum magnatum in Statute of Wesminster was stipulated to recover the reputation on amicable basis;

o That, according to the witness, such a provision does not match the condition in this 21st century, where people like to demand for compensation in case of defamation. There is systematic anomaly if an action resulting in privaatrechtelijk should find the terms and characteristics thereof in a collection of the applicable legislation on publiekrechtelijk basis;

o That, according to the witness, defamation is a criminal act that can only be intended to individuals. Criminal act in articles on defamation in the Penal Code is included in a complaint delict and law of complaint is basically an individual law. While, Articles 207 and 208 of the Penal Code threat anyone insulting the competent agency or the public authority in Indonesia with imprisonment;

o That, according to the expert, Articles 207 and 208 of the Penal Code ignore the aim and objective of the legislator to limit the victim of defamation only to individuals. Articles 207 and 208 of the Penal Code are deliberately made not to give an opportunity to the accused to prove the correctness of accusation in the defamation;

o That, according to the witness, Articles 207 and 208 of the Penal Code are the colonial exception to the applicable principle of concordance to the Netherlands and its colonies;

o That, according to the expert, Articles 207 and 208 of the Penal Code violate the principle of people’s sovereign, namely the official and government status is obtained fully to the people sovereign right, therefore they should be transparent and abide by the people’s criticism.

[3.11.6] The Petitioners’ Expert, Yenti Garnasih

The expert Yenti Garnasih, in a hearing on July 23, 2008, stated:

o That, according to the expert, in accordance with ultimum remedium allegation, penal code is the final tool for determining which actions that should be criminalized. There are some requirements to determine which action to criminalize, among others, the action is disgraceful, harms and has a social admission, as well as there is an agreement to criminalize. Thing to consider is there should be no over criminalization;

o That, according to the expert, quoting Hoenagels’ opinion, it is important to consider various factors in making a criminalization to maintain ultimum remedium allegation and avoid over criminalization, namely: (a) not using a penal code emotionally; (b) not using a penal code to condemn any action whose victim or loss is not obvious; (c) not using a penal code if the loss resulting from the condemnation will be higher than that by a criminal act to formulate; (d) not using a criminal act if not strongly supported by the community; (e) not using a penal code if it is predicted that the use will not be effective; (f) a penal code in certain matters should specifically consider the control interest priority scale; and (g) a penal code as the repressive media should be used simultaneously with preventive media.

o That, in relation to the violation of the prestige or defamation, the expert is of the opinion that, the future control should make a comparative study involving, among others, legal sociologists and criminologists. So that, if an action is considered minor, the profit and loss to condemn a person should be thought over, and if severe, the community’s interest so threatened should be thought over namely the clogged channel of freedom of expression of opinion.

[3.11.7] The Petitioners’ Expert, Toby Mendel

The expert Toby Mendel, in a hearing on July 23, 2008, stated:

o That, according to the expert, the resolution of the United Nations in a General Session of the United Nations in 1946 discussed the significance of freedom of expression of opinion as the aspect of democracy and has been strengthened by the International Court and all regional courts of human rights throughout the world. The reasons are: (a) freedom of expression of opinion is the basis of democracy; (b) freedom of expression of opinion can serve as a tool for eradicating corruption; (c) freedom of expression of opinion can improve the accountability; (d) freedom of expression of opinion is the best way to find the truth.

o That, however, according to the expert, the freedom of expression of opinion is not absolute in nature but can be limited on the grounds for securing the rights of any other people, securing the national security, and securing the public order. To make the limitation legitimate, (a) the limitation is stipulated in law, (b) the limitation should have legitimate purposes. In relation to the limitation, the expert is also of the opinion that, firstly, the limitation of freedom of expression of opinion should be carefully planned to focus on protection of attainment of legitimate purposes; secondly, the limitation may not be too wide; thirdly, the limitation should be proportional;

o That, the current imposition of penal on defamation, according to the expert, is irrelevant to the preliminary reasons (the 13th and 14th centuries), that defamation was insulting in nature, while currently no more statement is insulting in nature because each country through various laws has effectively protected the public order. Currently, many countries rely on civil sanction for defamation;

o That, the expert does not see the relationship of defamation with public order. Even though, defamation indeed makes problem in the community, but according to the expert, it should not be handled extremely with imprisonment but with civil law;

o That, the expert acknowledges that each country has the different culture thereby having the different opinion in evaluating a reputation.

Sometimes, a statement is considered to ruin a reputation in a country but not in any other countries. But, the expert is of the opinion that, the difference of culture is insignificant or less significant in relation to the application of penal for defamation.

[3.11.8] The Petitioners’ Expert, Ifdhal Kasim

BY his written statement, the expert Ifdhal Kasim stated:

o That, according to the expert, the freedom of expression is guaranteed by the Constitution 1945, namely Article 28E paragraph (2), and has received the universal acknowledgment, as indicated in Article 19 of Universal Declaration of Human Rights (UDHR) and Article 19 paragraph (2) International Covenant on Civil and Political Rights (ICCPR);

o That, according to the expert, in addition to guaranteeing the freedom of expression, Law on human rights also guarantees the individual rights to honour or reputation, categorized as the privacy rights, that should also receive an equal protection to any other privacy rights;

o That, according to the expert, one of the forms of the state protection to the rights of honour or reputation is by containing the same in its national penal code, namely by making the crimes against integrity of person, such as defamation, slander, insult or libel. Almost all democratic countries have made the crimes against such actions, intending to protect the integrity of person;

o that, according to the witness, Indonesian national law, namely Article 28G paragraph (1) of the Constitution 1945 also protects the rights to honour and reputation. Law Number 39 Of 1999 on Human Rights, Article 29 paragraph (1) likewise. Further, the crimes against the rights have been contained in the national penal code, among others Articles 310, Article 311, Article 326, and Article 207 of the Penal Code. But, the protection to the rights to honour and reputation should also relate to the existence of the other rights, right to freedom of speech, freedom of expression), and freedom of the press that should also be protected by the state. The crimes against the honour and reputation should not become the effective weapon to encounter the freedom of speech and freedom of the press. But, currently, according to the expert, many countries increasingly leave behind the criminal act attacking the reputation and honour, it means the countries have written off defamation, slander, insult, false news as a criminal acts in their penal code;

o That, according to the expert, because the rights to freedom of expression correlate to the rights to honour or reputation that should jointly be guaranteed by the state, the state can reduce or limit the both rights, but the reduction or limitation shall be (i) prescribed by law; (ii) based on public order; (iii) moral and public health; (iv) national security; (v) public safety; (vi) rights and freedoms of others; (vii) rights and reputation of others; and (viii) necessary in a democratic society. Such principles of limitation are also adopted by the Constitution 1945, Article 28J;

o That, according to the expert, defamation and insult delicts in Penal Code are formulated too wide and not proportional to the resulting loss and the law imposed on the violator. Therefore, it is the time for Indonesia to review the writing off of imprisonment sanction to those committing insult or defamation criminal acts.

[3.12] Considering, that the Supreme Court has also heard the statements of the Parties Related To Independent Journalist Alliance (AJI), Indonesian Journalist Association (PWI), and Press Board principally indicating as follows:

[3.12.1] Statement of AJI-Related Parties

Independent Journalist Alliance (AJI)-Related Parties stated:

• That, according to AJI, freedom of expression and freedom of expression of opinion, orally and in writing, are basically the rights of each national protected by the constitution as contained in Article 28E paragraph (2), Article 28E paragraph (3) and Article 28F, Article 28I of the Second Amendment to the Constitution 1945; Article 19, Article 20 and Article 21 of the Decision of the People Deliberative Assembly of the Republic of Indonesia Number XVII/MPR/1998 on Human Rights; Article 14, Article 23 paragraph (2) and Article 5 of Law on Human Rights; Article 1 juncto Article 4 paragraph (1) of Law on Press; and Article 19 paragraphs (1) and paragraph (2) of International Covenant on Civil and Political Rights ratified by virtue of Law Number 12 Of 2005; Article 14, Article 23 paragraph (2) and Article 25 of law Number 39 Of 1999 on Human Rights;

• That, according to AJI, in the last several years, there is a tendency to stifle the press and bankrupt the media institution by the public officials and businessmen feeling that they are harmed by the press through legal suits before the court of justice by using Article 310 paragraph (1), Article 310 paragraph (2) Article 311 paragraph (1), Article 316, and Article 207 of the Penal Code;

• That, according to AJI, the imposition of sanction on suits for defamation as suffered by journalists and media, is basically a violation of freedom of expression, freedom of expression of opinion, orally and in writing, being the rights of every citizens protected by the constitution. The imposition of condemnation sanction to suits for defamation on the others citizens is also a violation to the constitution. Because freedom of expression and freedom of expression of opinion are the social control of citizens and the realization of democracy, the imposition of imprisonment as referred to in Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1) of the Penal Code has limited the constitutional rights or authorities and contravened the constitution and principles of a democratic constitutional state holding high the human rights, as instructed by the Constitution 1945;

• That, according to AJI, the penal in Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1) of the Penal Code and the granting of special rights to the Indonesian ruler or corporate body, as contained in Article 316 and Article 207 of the Penal Code, are the forms of violation of freedom of expression and freedom of expression of opinion being the constitutional rights of each citizen protected by the constitution.

[3.12.2] Statement of the PWI-related parties

Indonesian Journalist Association (PWI)-Related Parties principally stated:

• That, the complaints to or suits against or involvement of the national journalists in legal problems are not irrespective of dysfunctional Press Board. Whereas, if the Press Board maximally implements its functions, as explained in Article 15 paragraph (2) of Law Number 40 Of 1999 on Press, PWI is convinced that the national journalists and press should not be afraid of any punishment threat;

• That, according to PWI, currently Press Board seems to only defend the national journalists and press without making an analysis to develop the life of the press. In this case, the Press Board should be neutral, not side with national journalists or press and the Government;

• That, based on PWI’s current observation, many violations of the press are not irrespective of the shares of the Press Board that are not right to the target. The heaven wind of the Press Board has made the national journalists and press fall asleep and feel that they are special;

• That, according to PWI, concerning the petition for reviewing Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1), Article 316, and Article 207 paragraph (1) of the Penal Code against the Constitution 1945 instituted by the Petitioners is highly exaggerating. On the contrary, according to PWI, the articles even guarantee the implementation of Article 28E paragraphs (2), (3) and Article 28F of the Constitution 1945;

• That, according to PWI, it is not precise if the Petitioners as the journalists question the articles in the Penal Code because the articles so questioned are intended not only to the journalists or press but also to all. The Petitioners should, in fighting for legal protection to their professions, properly understand the applicable law and propose the improvement of Law on Press through a precise institution not only through the certain press organization or group;

• That, concerning the articles in the Penal Code that are inappropriate to the current condition, the Government and the House of People’s Representative certainly have the intention to revise the same. Here, the press men or press organizations should struggle and they should be those who understand the law correctly. Concerning the punishment imposed on the Petitioners or the journalists by using the articles in the Penal Code and not Law on Press, PWI is of the opinion that, it is the different matter. The press organizations should properly move jointly not severally as if they want to be heroes to fight for their rights. Press Organizations should sit together to discuss the matter pertaining to legal protection to the national journalists and press;

[3.12.3] Statement of Press Board-Related Parties

Press Board, in a hearing on July 23, 2008 and the witness’ statement, as completely contained in the section of Casus Positio of this Judgment, stated:

o That, the rights to express the opinion and the rights to protection of honour are two constitutional rights of Indonesian Nationals guaranteed by the Constitution 1945. if they both collide each others, the Press Board does not answer the question but only refers to Article 28J paragraph (2) of the Constitution 1945, and states that law stipulating the limitation of human rights can not be prepared arbitrarily, but should reflect the applicable norms in a democratic society;

o That, the threat of imprisonment as referred to in the Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1) of the Penal Code has resulted in an exaggerating fear and the impact is the community will not receive the information from various ideas and points of view because many people are afraid and would not take the risk of imprisonment due to expression of their thoughts and opinion;

[3.12.4] Statement of IJTI-Related Parties

Indonesian Television Journalists Association (IJTI), in a hearing on July 23, 2008, stated as follows:

o That, IJTI admits that Articles 310 and 311 of the Penal Code are not only for the press. But, those who are mostly affected with the same are the journalists and they make the journalists afraid of performing their tasks to collect information and disseminate the same to the public;

o That, in performing their tasks as journalists, any mistake or criticism to any harming things is considered as an insult, therefore there is no democratic world. If such a condition continues, the public rights to express their opinion will be revoked;

o That, imprisonment to the journalists not only kills the journalists but also harms the public interest which will eventually damage the democracy.

[3.13] Considering, that, the Court has asked the statement of the Penal Code Draft Preparing Team, in a hearing on June 24, 2008, principally stating as follows:

o That, the articles containing insult criminal act are intended to protect the honour and reputation of person and motivate each person to respect or treat the others with respect in accordance with human prestige and dignity as honour and reputation of person are also guaranteed by Article 28G of the Constitution 1945. Therefore, in the current context, insult criminal act formulation in Penal Code is the form of Penal Code protection to the constitutional rights of each person as the part of human rights guaranteed by the constitution;

o That, criticizing a person and insulting should be differentiated. Insult is a criminal act action for being a deliberateness to attack the honour or reputation of person preceded with criminal intent to make the honour and reputation of the person attacked. If a criticism is preceded, accompanied, or followed with insulting action, thing that is condemned is not the criticising act not the insulting act;

o That, the relationship of norms formulating prohibited actions and penal is inseparable. Therefore, only discussing the penal without connecting the same to its norms of prohibition is incorrect. Norms of prohibition relate to criminalization policies further followed with penalization with the lowest or heaviest penal threat. While penalization policies relate to imposition of penal, particularly imprisonment, certain acts considered as illegal in another branch of law become Illegal acts in a penal code and will be subject to penal sanction. Therefore, reviewing penal sanction threat without reviewing the norms of prohibition is incorrect according to penal code because penal sanction relates to and is not irrespective of the substance of the norms of prohibition, while penal sanction in articles relates to the weight of evaluation of criminal act formulated in the relevant articles. If the threat of penal sanction is eliminated while penal code norms or prohibition from committing actions in the articles remain existing, a person committing a criminal act shall not be subject to penal sanction or any sanction;

o That, in relation to the press, as contained in Law Number 40 Of 1999 on Press, it can be explained that:

i. Law on Press serves as an administrative law stipulating the field of press;

ii. Criminal acts contained in Law on Press include administration criminal act in the field of press (Article 18 of Law Number 40 Of 1999);

iii. Law of Press is not included as a special penal code that can contain any criminal provisions deviating from the general norms of material penal code and formal penal code (lex specialis) or are given more priority to the general norms of material penal code and/or formal penal code. Therefore, the principle of ”specific penal code defeating the general penal code” does not apply to Law on Press;

o That, the formulation of the norms in Articles 310, 311, 316, and 207 of the Penal Code, KUHP, concerning the norms and the threat of penal sanction, is not specifically intended to the press or persons who perform their profession as the journalists, unless fulfilling the following requirements:

a.violating the code of ethics and/or standard of profession turning to against penal code, administration penal code, or general penal code;

b.violating the administration law on press that can move the penal code, be against the administration penal code, or the general penal code;

c. violating the general penal code by falsifying their profession in the field of press;

o That, if the petition is granted, it will precisely result in a general prevention of each person, as stipulated in Article 28D paragraph (1) of the Constitution 1945. because if in the future a person deliberately committing defamation, insult, and slander, the person is penalized or the action becomes an allowed or unprohibited action;

[3.14] Considering that the Government has given the written statement whose content is basically the same as the statement given by the Penal Code Draft Preparing Team as described in the above paragraph [3.13];

[3.15] Considering that the Court has also heard the statements of the experts presented by the Government as follows:

[3.15.1] The Government’s Expert, Dr. Mudzakkir, S.H., M.H.

The Government’s Expert, Dr. Mudzakkir, S.H., M.H., whose complete statement is contained in the section of Casus Positio of this judgment, in a hearing on July 23, 2008, stated as follows:

o That, penal code norms as the part of the Indonesian national legal system is hierarchical, uniting, comprehensive in nature and has values thereby forming inseparable norm system or value system. The peak of the norm system is the constitution 1945 being the sources of material in forming the legislation, also serving as the basic norms uniting the Indonesian national legal norms, including penal code norms. Therefore, it is not justified to review the constitution of the state of the Republic of Indonesia based on the constitution of any other country because each country has their own national legal characteristics matching their legal community characteristics;

o That, legal norms in a penal code are differentiated into two, namely norms formulating any prohibited acts frequently called criminal act norms, and penalizing norms. The constitutional review in the field of Penal Code should only concern the norms and materials that can be tested should be provisions of law containing penal code norms, namely criminal act norms and penalizing norms or both of them;

o That, the general definition of insult is the attack to the honour and reputation of person, while the specific characteristics of insult or the forms thereof are: vilification [Article 310 paragraph (1) of Penal Code], written vilification [Article 310 paragraph (2) of Penal Code], slander [Article 311 of Penal Code], minor insult [Article 315 of Penal Code], slander complaint [Article 317 of Penal Code], false presupposition [Article 318 of Penal Code], and insult to the late [Articles 320-321 of Penal Code]. So, values to protect or strengthen by articles on insult as contained in Book II Chapter XVI of Penal Code are honour and reputation of person in the year of the public;

o That, honour and reputation are the part of human rights protected by Article 28G of the Constitution 1945 because even though the definition thereof can be differentiated but they are both an integral part, so that it is sufficient that a person commits an insult criminal act if he/she attacks one of them;

o That, the actions to attack the honour and reputation of the public officials are not measured from personal feeling of the relevant officials but from the public (objective) feeling whether or not the actions are included in actions attacking the honour or reputation. Here, the police, prosecutors, and judges should have the sensitivity to maintain the ethics (moral) in the life of a nation by interpreting the articles in the complaint delict. Controlling the state organizers is the part of democratic life guaranteed by law, but the right to control should be made fairly, proportionally, and take into account the legal norms, ethics, and any other norms. On the contrary, criticism to the public officials is usually directed to their deeds as the public officials not to themselves as individuals. Therefore, even though the criticism harms themselves as individuals, they should not complain the same to the police as individuals by acting on behalf of their positions;

o That, penal code protects the honour and reputation of person whatever the status is, and the honour of public officials or the state organizers by prohibiting from committing insult, in any form, attacking their honour and reputation. Therefore, according to the expert, penal code norms containing insult criminal act, stipulated in Book II Chapter XVI of Penal Code, are in line with and constitute the implementation of any further arrangement of the norms of human rights contained in the Constitution 1945, particularly Article 28G, and Law Number 39 Of 1999 on Human Rights, so that the elimination of Penal Code norms of insult in Penal Code does not comply with and contravenes the legal values and norms to maintain the Constitution;

o That, penal code is not directed to certain persons or those performing certain professions. If it is directed to certain legal subject, penal code norms specifically mention the same, because the criminal act can substantively only be committed by certain persons or those related to certain professions. Such a provision is the exception of the formulation of Penal Code in general. Penal code norms stipulating an insult delict in Articles 310, 311, 316, and 207 of Penal Code are not specifically directed to those having the profession of journalists, as long as they are proven to be against the law and fulfil the elements of criminal acts;

o That, penal code and penal sanction to the other legal norms are functioned to push or compel the adherence to the other legal norms. Therefore, penal code norms should relate to the other norms in the national legal system. Penal code norms do not mean to be legal norms without being connected to the other norms;

o That, the review of materials of prohibited actions or criminal acts contained in Penal Code should be interpreted as an integral part of the principle to prohibit an act, even as the part of the national legal system, and connected to penal code system and the national legal system on the whole. Therefore, the understanding one article in a penal code should be interpreted according to the values, principles, and the legal interest to protect through the articles:

1. matching the legal interests to protect in paragraphs, sections, and chapters in Penal Code; and

2. the legal interests and legal values to protect and maintain through the other non penal code fields or branches in Indonesian national legal system.

[3.15.2] The Government’s Expert, Djafar Husin Assegaff

The expert Djafar Husin Assegaff, in a hearing on July 23, 2008 stated:

o That, according to the expert, Article 310 paragraphs (1) and (2), Article 311 paragraph (1), Article 316, and Article 207 of Penal Code should remain maintained as they guarantee the honour and reputation of each community member from the news in mass media, holding high the fact and truth in journalistic work, and maintaining the honour and reputation of community member. The articles have to be respected by each journalist. Journalists should know the applicable legal system in their places of work and the social regulations therein;

o That, according to the expert, journalists should be careful to release the news in case of reputation of person. Defamation is a disgraceful action and out of the high journalistic values. Journalistic work reveals ”the truth” based on the tested ”facts”. Reporters find the news, write and submit the same to editor for examination whether or not it is worth disseminating, if it is worth disseminating, the editor should edit the news to: (i) avoid any mistake in fact or unreasonable fact, (ii) prevent from lingual errors, (iii) prevent from not resulting in what is called libelous sentences or paragraph. If the news results in a problem, he is brought to the a meeting with Editorial Manager or Executive Editor so as not to harm the reputation of person, humiliate or make fun of the person, or harm the reputation damaging his business or profession;

o That, according to the expert, media is a power, even the fourth and fifth powers (for broadcasting media) so that it could be misused. Therefore, ombudsmen media protects the media from not deviating and sentencing the same in case of mistake or violation of the ethics to hold high the law and rules of game and maintain human prestige and dignity. In the last section of his statement, the expert also quoted A.P. Manual for Libel in America that, “the publication of libel may result in what is considered a breach of peace. For that reason, it may constitute a criminal offence”.

[3.16] Considering that the Court received the statement ad informandum presented by Indonesian Legal Assistance Association (PBHI) and Indonesian Movement principally supporting the petition a quo. In addition, the Court also received the statement of the parties late received with the Registrar’s Office of the Court so that the Court should not necessarily consider the same;

[3.17] Considering that the Court has read the conclusion of the Petitioners received with the Registrar’s Office on August 7, 2008 principally stating that the Petitioners remain with their petition.

The Court’s Opinion

[3.18] Considering that after hearing the statement of the parties as described in the paragraphs [3.11] through [3.15], the Court further pronounced its conviction of the Petitioner’s petition. But, because the norms of constitution of which the review is petitioned is the norms of Penal Code, in casu Penal Code, particularly those stipulating or relating to the honour and reputation of person, before specifically pronouncing its conviction of the Petitioners’ allegations, the Court consider necessary to first of all pronounce its opinion on what legal interests generally protected by penal code and specifically relating to the prestige and dignity of person;

[3.19] Considering, according to the legal doctrines generally acceptable in penal code, that the general characteristic of criminal act or delict is an action violating the norms in such a way thereby rapping the legal interests of others or endangering the interests of others. In the meantime, three legal interests are protected by penal code namely individual interest, society’s interest, and the state’s interest. In case of individual legal interest, those protected or guaranteed by penal code anywhere, including those in Penal Code, can be in the form of life (leven), body (lijt), freedom (vrijheid), and property (vermogen). In the further development, outside the four things, honour (eer) also become the legal interest protected by penal code because each human being has honour so that they are guaranteed that their honour will not be rapped or violated. The right to protection to the honour becomes the object of insult criminal act (de mens heeft het recht dat zijn eer niet zal worden gekrenkt);

[3.20] Considering that in line with the description in the above paragraph [3.19], Article 28G of the Constitution 1945 also explictly acknowledges that honour and prestige are the constitutional rights and protected by the constitution. Article 28G paragraph (1) of the Constitution 1945 reads, “Each person is entitled to protection to their own, family, honour, prestige, and property in their control, and entitled to safety and protection from the threat of fear of making or not making anything being the rights”. While paragraph (2) affirms that, “each person is entitled to be free from any torture or treatment humiliating the human prestige and entitled to obtain political asylum from another country”;

[3.21] Considering, as the proof that the general principles in penal code and the constitutional provisions stipulating the guarantee and protection to honour of an individual are the universally applicable legal norms, they have been contained in Article 12 of Universal Declaration of Human Rights (UDHR) and Article 17 of International Covenant on Civil and Political Rights (ICCPR), reading:

Article 12 of UDHR

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 17 ICCPR

1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.

2.Everyone has the right to the protection of the law against such interference or attacks.

[3.22] Considering that therefore, the national law and international law guarantee the rights of each person to honour and reputation.

Therefore, the use of freedom or the rights of each person can not be used in such a way without any limitation thereby attacking the honour and reputation of others for contravening not only the Constitution 1945 but also the international law;

[3.23] Considering, after considering anything relating to the legal interests protected by penal code and the rights to honour and prestige as the constitutional rights, the Court further consider necessary to remind the important things as follows:

[3.23.1] That, the constitutional review and problems occurring from the application of a norm of law in some countries (for example, Germany or South Korea) should be differentiated and included in the scope of constitutional complaint whose competence to hear is also given by constitutional court. In case of constitutional review, what is questioned is whether or not a norm of law contravenes wit the constitution, and what is questioned in constitutional complaint is whether or not an action of a public official (or absence of action of a public official) violates the basic rights of person, that can occur among others because the relevant public official is mistaken in interpreting the norm of law in his application. But, pursuant to Article 24C paragraph (1) of the Constitution 1945, the Court is explicitly only declared that it is competent to hear, try and judge the constitutional review, while the Constitution 1945 does not stipulate the constitutional complaint to date;

[3.23.2] That, having accurately read the Petitioners’ petition and statement in the hearing, what is questioned by the Petitioners is actually the constitutional complaint that the judicial review or the constitutional review. But, because the matter has been instituted as the petition for reviewing the law against the Constitution 1945 on the allegations that the provisions in Penal Code contravene the articles of the Constitution 1945, the Court should hear, try, and judge the same;

[3.24] Considering that the Petitioner I alleges that Article 310 paragraphs (1) and (2), and Article 311 paragraph (1) of Penal Code violate Articles 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945 because according to the Petitioners, provisions on imprisonment sanction to vilification, written vilification, and slander contravene the Constitution 1945, namely:

a. vilification, namely an action deliberately attacking the honour and reputation of person, by accusing of committing a thing, for people cognisance [Article 310 paragraph (1) of Penal Code];

b. written vilification, namely a vilification by article or picture broadcasted, showed or stuck before the public [Article 310 paragraph of Penal Code];

c. slander, namely the correctness of actions as contained in Article 310 paragraphs (1) and (2) of Penal Code can not be proven by the actor [Article 311 paragraph (1) of Penal Code].

According to the Petitioner I, imprisonment sanction to provisions of the three criminal acts violates the freedom of expression of opinion and attitude conscientiously [Article 28E paragraph (2) of the Constitution 1945]; freedom of expression of opinion [Article 28E paragraph (3) of the Constitution 1945; and freedom of communication [Article 28F of the Constitution 1945]. Points of argumentation of the Petitioner I are:

- That, freedom of expression of thoughts and opinions, freedom of expression, and freedom of the press are guaranteed by Article 28E paragraphs (2) and (3) as well as Article 28F of the Constitution 1945; Article 14, Articles 19, 20, 21 of the Decision of People Deliberative Assembly Number XVII/MPR/1998; Articles 14, 23 paragraph (2), and Article 25 of Law on Human Rights; by Article 19 paragraphs (1) (2) of ICCPR;

- That, insult delict is frequently imposed on Indonesian nationals using their constitutional rights to express their opinions and thoughts orally and in writing and make activities to disseminate the information;

- That, delict formulation as stipulated in Article 310 paragraph (1) of Penal Code is easily used by those not liking the freedom of expression of opinions and thoughts, freedom of expression and freedom of the press;

- That, delict formulation in Article 311 paragraph (1) and Article 310 of Penal Code is not the formulation expressly adopting lex certa principle thereby being able to result in legal uncertainty and vulnerable to unilateral interpretation whether or not an expression of opinion or thought is criticism or defamation and/or slander, therefore a punishment in the form of imprisonment is highly exaggerating and can disturb the constitutional rights as guaranteed by Articles 28E paragraphs (2) and (3) of the Constitution 1945;

- That, the use of sentences or words in expressing opinions and/or thoughts orally and in writing will always develop. Therefore, it is highly possible that sentences or words considered to insult in the past are not considered to insult in the present, and sentences considered to insult in the present are not considered to insult in the future likewise;

- That, the effectiveness of imprisonment as referred to in the Article 310 paragraph (1), Article 310 paragraph (2), and Article 311 paragraph (1) of Penal Code has legally lost its relevance and raison d’etre in a democratic country if encountered with Article V of Law Number 1 Of 1946 on the Penal Code Regulation;

- That, no one or group, including the Government, may interpret the human rights guaranteed by the Constitution 1945 in such a way in any form of business or action intended to eliminate the rights or freedom already guaranteed by the Constitution. Therefore, the imprisonment as referred to in Article 310 paragraph (1), Article 310 paragraph (2), and Article 311 paragraph (1) has become the tool for limiting the constitutional rights and/or authorities and contravenes the constitution so that it has to be eliminated.

Concerning the Petitioner I’s allegation, the Court is of the opinion that, if what is meant by the Petitioner I by his allegations is the existence of the Petitioner I’s presumption that the articles in the Penal Code of which the review is petitioned eliminate the rights to freedom of expression of opinion and attitude conscientiously, rights to express opinions, and rights to be free to communicate, therefore according to the Court, such a presumption is not right. The constitution guarantees the rights and therefore the state should protect the same. But, at the same time, the state should also protect the other constitutional rights whose degree is the same as the rights, namely the rights of each person to honour and reputation, as stipulated in Article 28G of the Constitution 1945 reading,

(1) Each person is entitled to protection to their own, family, honour, prestige, and property in their control, and entitled to safety and protection from the threat of fear of making or not making anything being the rights;

(2) Each person is entitled to be free from any torture or treatment humiliating the human prestige and entitled to obtain political asylum from another country.

Because of the obligations to protect the constitutional rights, in casu the rights to honour and prestige, the state is justified to limit the rights to freedom to express opinion and attitude conscientiously, the rights to express opinions and be free to communicate, as explicitly contained in Article 28J paragraph (2) of the Constitution 1945 reading, “In implementing their rights and freedoms, each person shall adhere to the limitation stipulated by law solely intended to guarantee the acknowledgment and respect to the rights and freedoms of others and fulfil fair demands considering the moral, religious values, security, and public order in a democratic society”. Even, without the Article 28J paragraph (2) of the Constitution 1945 those owing the rights to the freedoms should have realized that each right will always have obligations, at least those not to misuse the rights. Therefore, Article 28J paragraph (1) of the Constitution 1945 affirms, “Each person shall respect the human rights of others in the order of social and national life”. Moreover the rights with freedom substance, the awareness of limitation adhering to the rights is a must.

It is unimaginable that there will be an order in the social life, or even a mutual life called society, if each people uses their freedoms as they like. In this context, limitation of freedoms by law is a certainty. It is also justified by the Petitioners’ experts, namely Toby Mendel and Ifdhal Kasim. According to Tobby Mendel, freedom of express of opinions is not absolute but can be limited to guarantee the rights of others, the national life, and public order. In the meantime, the Expert Ifdhal Kasim in his written statement put forward eight principles that can be justified to make limitation, namely (i) prescribed by law; (ii) public order; (iii) moral and public health; (iv) national security; (v) public safety; (vi) rights and freedoms of others; (vii) rights and reputation of others; and (viii) necessary in a democratic society.

Article 310 paragraphs (1) and (2), Article 311 paragraph (1) of Penal Code are the realization of the limitation and the state obligations to protect and guarantee the honour of each constitutional right as asserted in the Constitution 1945. therefore, articles in the Penal Code do not contravene the Constitution 1945.

Concerning the argumentation of the Petitioner I that insult delict is frequently imposed on Indonesian nationals using their constitutional rights to express their opinions and thoughts orally and in writing and make activities to disseminate the information. In addition, the provision is easily misused by those not liking the freedom of expression of opinions and thoughts, freedom of expression and freedom of the press. It is the argumentation questioning the application of norms not questioning the constitutionality of norms. It is not true that the weakness or lack in the process of applying the norms is overcome by revoking the norms because penal code will never have the reasons and place to live in the society if we revoke the same anytime we are disappointed of the application of law norms, in casu penal code norms. Moreover, the biggest part of the cases made as examples by the Petitioners and the parties in the hearing relate to violations in law enforcement practices. The proper law enforcement is not yet entrenched in accordance with the ideals of a democratic constitutional state.

Further, if the Petitioner I questions the fact that sanction to those violating the limitation in some countries is no longer in the form of imprisonment, it does not make the imprisonment sanction in Article 310 paragraphs (1) and (2), Article 311 paragraph (1) of Penal Code immediately unconstitutional or contravene the Constitution 1945 because it has been the values adopted by a society considered proper, fair, correct, and others frequently different between one country and other ones. Even though, a mutually influencing relationship between one country and other ones concerning the ideas, principles, and tradition in the technological and communication advance in this global era, but the mutually influencing relationship does not eliminate the difference of context due to the local situational and conditional factors (situationgebundenheit).

Likewise, whether or not a penal sanction threatened to an action is proportional depends on the values adopted a society. The values will always change, develop and depend on the reference used by a society considered ideal. Something considered ideal will be reflected in legal politics further realized in the form of legislation. It is not possible for the Court to evaluate and review the constitutionality of political ideas not yet becoming legal products and then pronounce that they contravene the constitution. The Court is only competent to review the law norms as the realization of the political ideas, namely in the form of law. But to review whether or not a law norm is constitutional, the Court relies on not only the development or tendency occurring in the other countries but also their dynamics.

Moreover, provisions on insult and defamation criminal acts in the Penal Code of which the review is petitioned are quite proportional as they are formulated as complaint delict. By following the way of thinking of the Petitioner I himself, namely the words used for expressing the opinions always develop, the correctness of this argumentation will precisely be tested by two things. Firstly, whether or not in a certain development phase, words or sentences – both expressed orally and in writing – are still considered to insult, namely whether or not it is complained by a person considering that he is the victim of insult and defamation by the words or sentences. Secondly, whether or not the judges – after passing through the proof process in a hearing – agree with the complainer that the words or sentences indeed insult or defame.

In addition, penal sanctions threatened in articles on insult and defamation in the Penal Code are alternative not cumulative in nature, so that if a person in a hearing is accused of being the actor of insult and defamation for defending the public interest and own interest, for example a journalist who reveals the attitude of a corruptor, it also depends on the evaluation of the judges hearing the case, whether or not – if he is proven to be guilty – he will be imprisoned or fined. It has been asserted in Article 310 paragraph (3) of Penal Code. The fact indicates that how incessant the news in printed or electronic media on those presumably committing corruption is, but those who complain for vilification of their honour and reputation are not significant that the incessant news on the corruptors. It simultaneously indicates that there has been a change of positive legal culture in the society, not only in the perspective of those active in media but also in the perspective of those reported in media.

Further, the Court is also of the opinion that the formulation of a law norm does not immediately lose its raison d’etre just because it is the legacy of colonial administration thereby contravening the essence of Indonesia as a free country and the Constitution 1945. For example, the previous judgment of the Court pronouncing that several articles of Penal Code contravene the Constitution 1945 and have no binding force of law, among others Article 134, Article 136 bis, and Article 137 of Penal Code (vide Judgment Number 013-022/PUU-IV/2006 dated December 6, 2006). The Court is also not competent to change the types of penal sanctions in Article 310 paragraphs (1) and (2), Article 311 paragraph (1) of Penal Code, as petitioned by the Petitioner in his petitum because it is the competence of the legislator through a legislative review. The petition a quo is highly different from a case of review of Law Number 29 Of 2004 on Medical Practices where the Court pronounced that imprisonment sanction in Article 75 paragraph (1) and Article 1 76 as long as concerning the words “the maximum imprisonment of 3 (three) years or” and Article 79 as long as concerning the words “the maximum imprisonment of 1 (one) year or” as well as Article 79 point c as long as concerning the words “or point e” in Law on Medical Practices contravene the Constitution 1945. the Court’s Judgment is principally based on the ground that any violation threatened with imprisonment in the law is an administrative violation so that sanction to the violation can be imposed with penalty sanction, not imprisonment sanction as it is not proportional (vide Court’s judgment Number 4/PUU-V/2007 dated June 19, 2007). Moreover, in the case, law of which the review is petitioned is law whose scope only stipulates the medical practices not the general law as the Penal Code of which review is petitioned by the Petitioner.

[3.25] Considering, that the Petitioner II alleges that Articles 207 and 316 of Penal Code contravene Article 27 paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945 because, according to the Petitioner II, the articles contravene the Constitution 1945, namely:

a. deliberately insulting a ruler o corporate body before the public, orally and in writing [Article 207 of Penal Code];

b. insulting officials performing their functions or due to performing their functions [Article 316 of Penal Code].

According to the Petitioner II, the both articles contravene:

1.the right to equal position before the law [Article 27 paragraph (1) of the Constitution 1945];

2.the right to freedom to belief, freedom to expression of opinion [Article 28E paragraph (2) of the Constitution 1945]; and

3.the right to freedoms of unity, gathering, and expression of opinions [Article 28E paragraph (3) of the Constitution 1945].

Points of argumentation of the Petitioner II to support his allegations are:

- That, concerning the application of Article 207 of Penal Code, the Constitutional Court also expresses its opinion in a Judgment Number 013-022/PUU-IV/2006, “Prosecution to the violator of Article 207 of Penal Code by the state competent agency requires the adjustment in the future in line with Court’s consideration on Article 134, Article 136 bis, Article 137 of Penal Code”;

- That Articles 207 and 316 of Penal Code explicitly give protection and special treatment to state officials and apparatuses and remove the equality principle before the law as stipulated in Article 27 paragraph (1) of the Constitution 1945;

- That effectiveness of Articles 207 and 316 of Penal Code has seriously threatened the freedom of expression of thoughts and opinions, freedom of expression, and freedom of the press, as well as legal certainty;

- That Articles 207 and 316 of Penal Code have lost it relevance and raison d’etre in a democratic country if encountered with Article V of Law Number 1 Of 1946 on the Penal Code Regulation;

- That delict formulation in Article 310 paragraph (1), Article 316, Article 207 of Penal Code is not the formulation expressly adopting lex certa principle thereby being able to result in legal uncertainty and vulnerable to unilateral interpretation whether or not an expression of opinion or thought is criticism or defamation and/or slander, therefore a punishment in the form of imprisonment is highly exaggerating and can disturb the constitutional rights as guaranteed by Articles 28E paragraphs (2) and (3) of the Constitution 1945;

- that application of Article 207, Article 310 paragraph (1), and Article 316 of Penal Code can also result in legal uncertainty and be vulnerable to unilateral interpretation whether or not the submission of information is a criticism or defamation and/or slander thereby hampering the freedom of the press as guaranteed by Article 28F of the Constitution 1945;

- That honour and reputation of person indeed remain maintained and respected as stipulated in Article 19 paragraph (3) of ICCPR (Law Number 12 Of 2005), but the use of protection by Articles 207 and 316 of Penal Code to states officials and apparatuses is exaggerating and arbitrary;

- That the development of freedom of expression of opinions and thoughts, freedom of expression and freedom of the press, particularly in democratic countries, has stepped forward so that it is inappropriate, even improper anymore, to pass an imprisonment sanction to those creating creative works, such as journalistic works, opinions, or expressions;

- That an opinion considering that expression of opinions, expressions and journalistic works as crimes that should be subject to imprisonment is no longer popular so that it should not be maintained for not complying with the international standard on freedom of expression of opinions and thoughts, freedom of expression, and freedom of the press;

- That, if penalty sanction contained in Penal Code is considered insufficient, the rules on insult and defamation are also contained in Articles 1372 through 1379 of Civil Code, so that the prosecution to insult and defamation can be made in a mechanism in Civil Code.

Concerning the allegations of the Petitioner II, the Court is of the opinion that as long as the allegations of the Petitioner II are the same as those of the Petitioner I, as described in the paragraph [3.24], the Court’s consideration to the allegations of the Petitioner I also applies on mutatis mutandis basis to those of the Petitioner II. Further, concerning the allegations of the Petitioner II referring to a Judgment Number 013-022/PUU-IV/2006, to avoid misunderstanding, the Court should refer to legal consideration of the judgment concerning Article 207 of Penal Code as follows:

• That, therefore Articles 310 – 321 of Penal Code should apply to insult delict to the President and/or the Voce President if the insult is directed to his personal quality, and Article 207 of Penal Code in case the insult is directed to the President and/or Vice President as officials (als ambtsdrager);

• That in relation to the effectiveness of Article 207 of Penal Code to insult delict to the President and/or Vice President as the insult to the other ruler or public bodies (gestelde macht of openbaar lichaam), the prosecution shall be based on a complaint. In some countries, among others Japan, insult to the Emperor, Queen, Queen Grandmother, Queen Mother, or beneficiaries of empire can only be prosecuted based on a compliant. Article 232 (2) The Penal Code of Japan stipulates that the Prime Minister will make a complaint on behalf of the Emperor, Queen, Queen Grandmother, Queen Mother to make a prosecution, and in case of insult to a king or president of a foreign country, the representative of the relevant country will make a complaint on his/her behalf. Prosecution to the violators of Article 207 of Penal Code by state apparatuses requires the adjustment in the future in line with the Court’s consideration on Article 134, Article 136 bis, and Article 137 of Penal Code;

Therefore, the Court’s opinion is obvious that Article 207 of Penal Code is unconstitutional. Where “state apparatuses requires the adjustment in the future in line with the Court’s consideration on Article 134, Article 136 bis, and Article 137 of Penal Code” means the adjustment through a legislative policy not through the constitutional review as understood by the Petitioner.

Concerning the Petitioner’s allegation that Articles 207 and 316 of Penal Code gives protection and special treatment to the state officials and remove the equality principle before the law, as long as concerning Article 207 of Penal Code, the Court’s consideration shall apply on mutatis mutandis basis. While concerning Article 316 of Penal Code, if the difference of legal treatment as meant by the Petitioner is the existence of penal aggravation (strafverhoging), the penal aggravation is not the difference of treatment but the constitutional logical consequence of Article 207 of Penal Code giving the separate protection to the state officials performing their tasks by law. The separate protection to the public officials performing their tasks is required due to the personal subjective elements of the officials and the objective elements of their institutions requiring the credibility, authority, and capacity for effective performance of their public tasks

[3.26] Considering, particular to the Petitioners’ allegations relating to freedom of the press, and taking into account the fact in the hearing, namely as if the articles in Penal Code of which the review is petitioned will shackle the freedom of the press, it is important for the Court to remind that provisions of which the review is petitioned in a petition a quo is the general penal code provisions applying not only to the press. Therefore, if penal provisions specifically applicable to the press or mass media in general is required, it should be specifically or separately formulated in Law on Press as lex specialis. As long as the law on press or mass media in general remains referring to Penal Code for criminal acts presumably committed by the press or mass media in general, it can not be said that there is a mistake in legal application if a prosecutor makes the Penal Code as a basis to pass its judgment. In other words, if a specific regulation on criminal acts presumably committed by the press or mass media in general is indeed required, it should be made as the part of penal law reform agenda to further realize through a legislative review. Likewise, if the application of penal code is considered inappropriate anymore in relation to the loss occurring from the news in press or mass media in general, but – for example – by sufficiently using a civil suit with liability based on fault, it can also be made through legislative review in accordance with penal code political direction to build.

4. CONCLUSION

Based on all considerations to the factual and legal considerations as described above, the Court concludes:

[4.1] That, reputation, prestige, or honour of person is one of the legal interests protected by penal law for being a part of the constitutional rights citizens guaranteed by the Constitution 1945 and the international law, therefore if a penal code imposes a certain penal sanction to any actions attacking the reputation, prestige, or honour of person, it does not contravene the Constitution 1945;

[4.2] That, Petitioners’ petition actually questions the application of law norms not the constitutionality of law norms;

[4.3] That, therefore, the Petitioners’ allegations are groundless, so that the petition shall be denied.

5. DICTION OF JUDGMENT

By reminding Article 56 paragraph (5) of Law Number 24 Of 2003 on Constitutional Court (State Gazette of the Republic of Indonesia Of 2003 Number 98, Supplement to State Gazette of the Republic of Indonesia Number 4316), by virtue of the Constitution of the State of the Republic of Indonesia Of 1945,

Hearing,

Pronouncing the Petitioners’ petition to be denied;

Judged in a Deliberation Meeting of Judges in the presence of nine Constitutional Judges on Wednesday, the thirteenth day August two thousand eight, pronounced in a Plenary Session of the Constitutional Court open to the public on this day, Friday, the fifteenth day of August two thousand eight, by eight Constitutional Judges, namely H. Harjono, as the Chief Judge, H.A.S. Natabaya, Maruarar Siahaan, I Dewa Gede Palguna, H. Abdul Mukthie Fadjar, Moh. Mahfud MD, H.M. Arsyad Sanusi, and Muhammad Alim, as Members, accompanied by Sunardi as Substitute Registrar, as well as in the presence of the Petitioners/Proxies, House of People’s Representative or its representative, the Government or its representative, Independent Journalist Alliance-Related Parties, Press Board-Related Parties, Indonesian Journalist Association-Related Parties, and Indonesian Television Journalist Association-Related Parties.

CHIEF JUDGE,

signed.

H. Harjono

Despite repeal of blasphemy laws, woman attempts prosecution of blasphemous art

2008-09-04T11:11:00.005+01:00

While the UK formally abolished its blasphemy laws earlier this year, someone in north London is attempting a private prosecution of art she finds offensive under public order laws. The case is supported by the Christian Legal Centre, who are supporting the private prosecution despite Nortumbria Police having investigated the issue and concluded there is no case to be brought. It will be interesting to see how this develops; hopefully, the case will be dismissed and with any luck affirmed by the Court of Appeal, which will knock silly prosecutions like this on the head once and for all. If you don't like the statue, north London lady, look away - no-one is forcing you to look!

In the interests of free speech, this is what the fuss is all about:

Sedition: Gambian journalist convicted, Malaysian cases continue

2008-08-19T13:14:00.004+01:00

Sedition laws continue to be abused around the world to suppress critical voices. In the Gambia, it was today reported that a journalist was convicted of sedition and given a choice between a USD12K fine or four years imprisonment with hard labour. Over on the other side of the globe, in Malaysia, the rich and powerful continue to abuse sedition laws to suppress critical (and sometimes not only very harshly critical, but also prima facie defamatory) voices. The latest to join the current fray is Datuk Muhammad Shafee Abdullah, a successful lawyer, who has lodged proceedings against Malaysia Today editor Reja Patra (though he'll have to join the queue as Petra has many charges pending against him).

My problem with that: sedition laws are skewed in favour of the plaintiff and they allow for very harsh sanctions, as the Gambian case demonstrates. They are a hangover from the colonial era, when they were used to keep the locals down, and I believe they should be fought hard: the Gambian case should be brought before the ECOWAS court, and a constitutional challenge should be brought in Malaysia.

Indonesian Constitutional Court upholds constitutionality of imprisonment for defamation

2008-08-15T11:54:00.004+01:00

In an unfortunate and unexpected decision, the Indonesian Constitutional Court held today that imprisonment for defamation is constitutional and that public bodies have a right to a reputation and can therefore sue in libel. A real shame, particularly given their earlier much braver decisions striking down sedition decision and enhanced defamation protection for the president and other public figures...

UN Human Rights Committee criticises UK libel law and practice

2008-08-11T11:29:00.002+01:00

The UN Human Rights Committee has criticised libel law and practice in the UK. In its report on the implementation of the International Covenant on Civil and Political Rights, it states:

"25. The Committee is concerned that the State party's practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as "libel tourism." The advent of the internet and the international distribution of foreign media also creates the danger that a State party's unduly restrictive libel law will affect freedom of expression world-wide on matters of valid public interest. (art.19)

The State party should re-examine its technical doctrines of libel law, and consider the utility of a so-called "public figure" exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures, as well as limiting the requirement that defendants reimburse a plaintiff's lawyers fees and costs regardless of scale, including Conditional Fee Agreements and so-called "Success Fees", especially insofar as these may have forced defendant publications to settle without airing valid defences. The ability to resolve cases through enhanced pleading requirements (e.g., requiring a plaintiff to make some preliminary showing of falsity and absence of ordinary journalistic standards) might also be considered."

The Committee also criticises national security and anti-terror legislation for their impact on freedom of expression:

"24. The Committee remains concerned that powers under the Official Secrets Act 1989 have been exercised to frustrate former employees of the Crown from bringing into the public domain issues of genuine public interest, and can be exercised to prevent the media from publishing such matters. It notes that disclosures of information are penalised even where they are not harmful to national security. (art.19)

The State party should ensure that its powers to protect information genuinely related to matters of national security are narrowly utilized and limited to instances where the release of such information would be harmful to national security.

...

26. The Committee notes with concern that the offence of “encouragement of terrorism” has been defined in section 1 of the Terrorism Act 2006 in broad and vague terms. In particular, a person can commit the offence even when he or she did not intend members of the public to be directly or indirectly encouraged by his or her statement to commit acts of terrorism, but where his or her statement was understood by some members of the public as encouragement to commit such acts. (art.19)

The State party should consider amending section 1 of the Terrorism Act 2006 dealing with “encouragement of terrorism” so that its application does not lead to a disproportionate interference with freedom of expression."

Another Malaysia blogger has been arrested for sedition

2008-08-07T15:41:00.003+01:00

This is becoming a bit of an issue in Malaysia - another blogger has been arrested on charges of sedition following criticial blog reports.

From the Star:

KUALA LUMPUR: Blogger Bakaq, also known as "Penarik Beca," has been arrested by Federal Commercial Crimes Investigation Department under the Sedition Act.

He was detained after four policemen in plain clothes raided his home at Taman Greenwood in Gombak at 11pm Wednesday.

It is learnt that police also seized a laptop and a handphone belonging to the blogger.

Bakaq, whose real name is Abdul Rashid Abu Bakar, is believed to have blogged recently about "hidden agenda" behind the muzakarah (dialogues) between PAS and Umno.

At 2pm Thursday, family and friends of Bakaq gathered at the federal commercial crimes headquarters in Bukit Perdana to show their support for him.

His lawyer Hanipa Maidin, who is also PAS' legal adviser, confirmed that Bakaq’s arrest was under the Sedition Act.

Council of Europe recommends guidelines to ISPs

2008-08-01T09:56:00.002+01:00

The Council of Europe's Steering Committee on the Media and new Communication Services has adopted a new set of guidelines "to assist Internet Service Providers in their practical understanding of, and compliance with, key human rights and fundamental freedoms in the Information Society, in particular with regard to Article 10 of the European Convention on Human Rights."

European media committee votes against new enforcement mechanism for freedom of expression

2008-08-01T09:44:00.003+01:00

From the minutes of a recent meeting of the Council of Europe's Steering Committee on the Media and new Communication Services:

"4. Possible future mechanism for promoting respect of Article 10 of the European Convention on Human Rights: In response to the Committee of Minister´s request following the Parliamentary Assembly Recommendations 1783(2007) on threats to the lives and freedom of expression for journalists and 1791(2007) on the state of human rights and democracy in Europe, the CDMC pursued consideration of this subject on the basis of a Bureau report on the state of discussions. While recognising that problems exist as regards respect for Article 10 of the Convention in member states, a tour de table during which 30 CDMC delegations took the floor, showed a majority of 14 to 12 against the establishment of a new monitoring mechanism. The CDMC therefore decided to ask the Committee of Ministers for further instructions on the subject."

This is a real shame - it likely means that this innovative and needed idea is dead. The idea had been to establish a kind of a rapid response mechanism to function alongside the Court - not to usurp the role of the latter, but to be able to provide a speedy response and dispute settlement where needed.

Tesco - Guardian libel case moves forward

2008-07-31T10:51:00.003+01:00

from today's Guardian - and of relevance to the Thai cases as well:

Tesco tax avoidance schemes can form part of libel case, judge rules

Company told to decide on offer of Guardian apology
· Refused leave to appeal and told to pay costs

David Leigh
The Guardian,
Wednesday July 30 2008
Article history

Details of elaborate offshore corporation tax avoidance schemes operated by Tesco were yesterday allowed to be introduced into evidence in a libel case the supermarket chain is bringing against the Guardian.

In a preliminary high court hearing, Mr Justice Eady ruled that the paper could file evidence of Tesco's tax avoidance by means of specially created partnerships and holding companies in Switzerland and Luxembourg. One such Tesco scheme was outlawed by the government in this year's budget legislation. The two schemes are alleged to have avoided up to £30m a year in UK tax on Tesco profits.

Tesco has so far refused to accept an apology from the Guardian for errors in an earlier article about the retailers' tax tactics, and has accused the paper and its editor of telling deliberate lies. The paper wrongly said that Tesco was avoiding up to £1bn in a corporation tax avoidance scheme involving windfall profits on sale and leaseback of its UK stores.

Eady also ruled that Tesco must decide by September 15 whether to accept the Guardian's offer of an apology and damages. He ordered a stay on a parallel claim by Tesco against the Guardian and its editor claiming "malicious falsehood". The judge refused Tesco permission to appeal and awarded costs against the company.

Lawyers for Tesco yesterday unsuccessfully argued that the fresh allegations about Tesco tax avoidance were irrelevant. Adrienne Page QC said Tesco did engage in what she called "low level tax planning, tax avoidance" but what the company objected to, she said, was the Guardian's false claim of "massive" avoidance and "plundering the Treasury".

She said the corporation tax avoidance claims and other avoidance by Tesco of up to £63m tax on its land deals, were "a drop in the ocean" compared to the millions spent by Tesco on charitable donations and its computers for schools vouchers. Tesco paid hundreds of millions in corporation tax, and was a major taxpayer compared with some other UK firms.

Tax avoidance was a "grey area", she claimed, and it was now usual to divide companies' avoidance tactics into "aggressive" and "non-aggressive" tax planning behaviour. Tesco "does not engage in highly aggressive tax avoidance".

Eady said he would allow the evidence of the Swiss and Luxembourg schemes, first disclosed in Private Eye, to be introduced into the case for the time being. Andrew Caldecott QC, for the Guardian, had argued it would not be fair to take any decision "in blinkers" on the amount of any damages to be received by Tesco, and claimed that evidence of other corporation tax avoidance schemes Tesco was operating at the time, covered the same ground as the original libel.

The judge also ordered the Tesco board to make a final decision within the next six weeks on whether they intended to push ahead with allegations of dishonesty against the paper and its editor, or whether they were prepared to accept the Guardian's "offer of amends".

Tesco claimed that the wording of the law allowed them neither to accept or reject the offer, and that they could go ahead with a full-scale libel trial regardless. The judge said the 1996 "Offer of Amends" special regime had been introduced by parliament to assist journalists who had made a mistake and were "over a barrel". "It enables them to climb off the barrel". This was a classic case for using the procedure, designed by parliament to achieve a speedy and inexpensive outcome. It was not legitimate, he said, for Tesco to hold up a decision indefinitely whether to accept the offer or not. "It is a tough choice for claimants sometimes, but so it was meant to be."

He ordered Tesco to decide by September 15 whether to accept the Guardian's offer of an apology and suitable damages, or whether to attempt to prove in court that the paper had been deliberately dishonest. Eady also ordered a stay on a parallel claim by Tesco against the Guardian and its editor for "malicious falsehood".

He said the lawyers in the case might wish to press on with the claim "no doubt at great expense", but it would be for no better reason than to establish malice for its own sake. The claim only appeared to serve tactical purposes, and it was inconsistent to keep open the possibility of accepting an offer of amends while going ahead with such a claim. "It is no part of the court's purpose to punish or humiliate the other party, or provide an opportunity for public relations purposes." He added that nowadays "litigation is no longer regarded as a game for lawyers". It was instead, he said, to be "aimed at achieving justice between the parties".

Tesco were refused permission to appeal the rulings and costs were awarded against them. It is open to the supermarket to apply direct to the court of appeal later this year.

Facts and opinions: Kita v. Poland

2008-07-15T11:33:00.003+01:00

Kita v. Poland, decided a few days ago by the European Court of Human Rights, further elucidates the statement of fact vs. statement of opinion dichotomy that bedevils so many domestic courts. The following paragraphs are interesting:

"

42. Turning to the facts of the instant case, the Court notes that the applicant had clearly written and distributed the impugned article in the course of an ongoing election campaign. The targets of the applicant's criticism were the president and named members of the City Council Board.

43. It is certainly true that the article at issue reflected a rather critical approach to the work of the local politicians. In this respect the Court reiterates that in a democratic society, public authorities and their representatives expose themselves in principle to the permanent scrutiny of citizens and that everyone must be able to draw public attention to situations that they consider unlawful provided that they do so in good faith (see Kwiecień v. Poland, no. 51744/99, § 54, ECHR 2007-).

44. As regards the categorisation of the applicant's statements the Court observes that the Polish courts unreservedly qualified all of them as statements which lacked any factual basis without examining the question whether they could be considered to be value judgments.

45. While it is true that some of these statements, such as “the municipality had received subsidies from the State for transport of children to schools” or “the employees of the municipal educational institutions had not received special allowances” could be considered statements which lacked a sufficient factual basis, the Court notes that the thrust of the applicant's article was to cast doubt on the suitability of the local politicians for public office. It related to issues of public interest and concerned specific acts of the local municipal councillors carried out in the exercise of their public mandate. The Court further considers that the article also included statements which could reasonably be considered value judgments, such as “H. O. had not acted to the benefit of the school employees” or “teachers did not claim the allowance as they were afraid of losing their jobs”.

In the circumstances of the present case it does not seem that the applicant acted in bad faith. Having regard to the above the Court considers that the applicant's statements formed part of a debate on matters of public interest.

46. In any event, the Court would observe that the distinction between statements of fact and value judgments is of less significance in a case such as the present, where the impugned statements were made in the course of a lively political debate at local level, and where the members of the community should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact (see Lombardo and Others v. Malta, no. 7333/06, § 60, 24 April 2007).

47. As regards the reasons adduced by the domestic courts to justify the interference the Court observes that they have failed to recognise that the present case involved a conflict between the right to freedom of expression and the protection of the reputation and the rights of others and so did not carry out the relevant balancing exercise (see, mutatis mutandis, Keller v. Hungary (dec.), no. 33352/02, 4 April 2006). Nor did they give any consideration to the fact that the limits of acceptable criticism of the members of the City Council Board – W.M., H.O. and K.S. were wider than in relation to a private individual.

48. Furthermore, the Court notes that in none of their decisions did the domestic courts quote passages from the applicant's article or particular statements that he had made but merely considered the general meaning of his article (see paragraphs 17 and 21 above)."

Hatfill v. New York Times: Times wins libel suit launched by army scientist

2008-07-15T11:16:00.006+01:00

On the AP wire this morning:

Court rules for NY Times in anthrax libel case

By LARRY O'DELL – 11 hours ago

RICHMOND, Va. (AP) — A former Army scientist who sued The New York Times for libel is a public figure who failed to prove that columns linking him to the deadly 2001 anthrax attacks were malicious, a federal appeals court ruled Monday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously affirmed a lower court's dismissal of Steven J. Hatfill's lawsuit. Hatfill claimed a series of columns by Nicholas Kristof falsely implicated him as the culprit in anthrax mailings that killed five people and sickened 17 just weeks after the Sept. 11 terrorist attacks.

The court said Hatfill, who worked at the Army's infectious diseases laboratory at Ft. Detrick, Md., from 1997 to 1999, had inserted himself into the national debate about bioterrorism years before the anthrax attacks. Hatfill advised the government, gave public speeches, participated in panels and was interviewed by the press.

"Through these media, Dr. Hatfill voluntarily thrust himself into the debate," Judge Paul V. Niemeyer wrote. "He cannot remove himself now to assume a favorable litigation posture."

A 1964 U.S. Supreme Court ruling, Times v. Sullivan, established the "actual malice" standard for public officials and public figures suing for libel. The appeals court cited that case in its ruling.

"We're obviously delighted with the court's decision," said David McCraw, assistant general counsel for The New York Times. "We think it's an important reaffirmation of Times v. Sullivan, which is intended to encourage vigorous discussion of public events."

Hatfill's attorney, Lee Levine, did not immediately return telephone messages seeking comment.

Kristof's columns criticized the FBI for what he viewed as a lackadaisical investigation of the mailing of anthrax to members of Congress and to news organizations in New York and Florida. Then-Attorney General John Ashcroft publicly identified Hatfill as a "person of interest" in the investigation.

The court noted that an FBI search of Hatfill's apartment was televised live, and that other media outlets besides The New York Times named him as a suspect in the anthrax attacks. Only then did Kristof refer to Hatfill by name in his columns, the appeals court said.

Joining Niemeyer in the opinion were Judge M. Blane Michael and visiting Judge C. Arlen Beam of the 8th U.S. Circuit Court of Appeals.

Last month, the Justice Department agreed to pay Hatfill $5.8 million to settle a lawsuit claiming officials violated his privacy rights by speaking with reporters about the case.

On the Net:

Hatfill v. The New York Times: http://pacer.ca4.uscourts.gov/opinion.pdf/071124.P.pdf

Federal free speech protection bills proposed to accompany New York's Libel Terrorism Act

2008-07-14T12:56:00.005+01:00

Joe Lieberman and Arlen Specter have introduced legislation in the Senate to protect US-based publishers from (the enforcement of) foreign libel judgments. A direct response to the Rachel Ehrenfeld case, the Free Speech Protection Act of 2008 would be the federal equivalent of New York's "Libel Terrorism Protection Act", which was signed into law May 1 of this year. There is a parallel House Bill, sponsored by Rep. Pete King (R., N.Y.) and co-sponsored by Rep. Anthony Weiner.

These are excellent initiatives; even better would be if the UK courts would stop handing down judgments like the one against Rachel Ehrenfeld. The current Mosley case is very troubling in this sense - not because it is an example of good journalism, but because if the News of the World loses - which it certainly will - the judgment will have ramifications way beyond that particular 'bastion of journalism'.

Irish Constitution Committee recommends removal of blasphemy and sedition references in constitution

2008-07-14T12:49:00.002+01:00

As reported in the Irish Times, the Oireachtas Joint Committee on the Constitution has published a report on freedom of expression in which it recommends that constitutional references to blasphemy and sedition as a restriction on free speech should be removed. Good stuff. Unfortunately, the chair of the Committee said, "given the development in case law and the jurisprudence which has emerged on freedom of expression since 1996, the Committee is of the view that amendment is not immediately necessary but recommends that change be made when an appropriate opportunity presents." So that will probably take a while.

Hungarian constitutional court strikes down hate speech law

2008-07-14T12:30:00.001+01:00

From the Budapest Times:

Tuesday, 08 July 2008
‘Amendments would restrict freedom of expression to unacceptable degree'

The spectre of the Holocaust was invoked last week when controversial legislation criminalising hate speech was thrown out by the Constitutional Court.

The court last Monday rejected two amendments to Hungary’s laws on inflammatory public discourse that would have made ‘hate speech’ a criminal offence punishable by up to two years in prison.

In the wake of a perceived rise in open attacks on minority groups by extremists, the government last autumn brought in legislation on hate speech. It aimed to restrict public speech that denigrates and foments prejudice against minority groups on the grounds of religion, ethnicity or sexuality.

The amendments tightening the law were passed by parliament in November 2007 and February this year, but referred to the court by President László Sólyom, who felt the stricter rules on public discourse might be unconstitutional.

Freedom versus dignity

The Constitutional Court ruled last Monday that the amendments were indeed unconstitutional. Péter Feldmayer, president of the Federation of Hungarian Jewish Communities (MAZSIHISZ), said that the human right to dignity is paramount. Criticising the court’s decision, he said the court now appears to consider freedom of speech to be of equal importance. Feldmayer did, however, agree that the legislation struck down last Monday was flawed.

Others reacted more angrily to the court’s decision. Socialist MP Tamás Suchman, one of the authors of the controversial legislation that would criminalise hate speech, last Wednesday visited the president of the court, Mihály Bihari.

Auschwitz diary presented

Suchman gave Bihári a copy of the diary his mother kept in the ghetto in the southern Hungarian town of Kaposvár and continued at Auschwitz. Speaking after the meeting, Suchman said the timing of the court’s decision was a slap in the face for those commemorating “the 600,000 who were deported and murdered” in the closing days of the Second World War.

Suchman said that legal regulation is needed because there is little chance at the moment in Hungary of a broad alliance across the political, religious and social spectrum.

He acknowledged as a positive exception the move by the Fidesz mayor of the southern town of Hódmezővásárhely, who recently banned the far-right Magyar Gárda from holding rallies there.

President László Sólyom had referred the two amendments to the Constitutional Court in the wake of concerns expressed by civil liberties groups. The chairman of the Hungarian Civil Liberties Union (TASZ), Balázs Dénes, said in February: “It limits the basic right to freedom of speech in an unprecedented way.”

In the clauses

The new clauses would have widened the scope of people offended by purveyors of hate speech to take legal action, as well as putting peddlars of inflammatory rhetoric at risk of imprisonment.

The first amendment enabled a person to bring a civil action against a speaker even if the hate speech was not aimed directly at the plaintiff, but rather the ethnic or social group to which he or she belongs.

The second made hate speech a criminal offence punishable by a prison sentence of up to two years. The latter was voted through mainly by backbench Socialist MPs without the support of the cabinet after opposition Fidesz MPs had left the chamber.

Unacceptable restriction

In handing down its ruling, the court stated that only natural persons are entitled to have their human dignity protected by legislation, and that it cannot be applied to broader communities or groups. The court decided that both of the amendments would restrict freedom of expression to an unacceptable degree.

“In a free and democratic society the expression of extreme and exclusive opinion does not endanger the foundations and operations of society, because by expressing such views, the discriminator confines itself to the periphery,” the court said in its ruling.

The original bill on hate speech was passed last October as the government sought to address a perceived increase in activity by right-wing extremists. The most high-profile example was the creation of the Magyar Gárda (Hungarian Guard), a uniformed group set up by the extreme nationalist Jobbik party.

Open season on Jews & Gypsies

Socialist MPs Gergely Bárándy and Tamás Suchman, the sponsors of the amendment bills, immediately voiced their disappointment at the court’s decision. At a press conference Bárándy said the ruling means it is now possible to “denigrate Jews and Gypsies publicly and with impunity”. Suchman said that the move would reassure those who “even if they are not neo-fascists… still represent extreme right-wing beliefs that the whole of civilised Europe opposes.”

The Socialist MPs pledged to resubmit legislation to curb hate speech to parliament as many times as are necessary until it is voted through.

The main opposition party in Hungary, the centre-right Fidesz, had rejected the amendments all along. Fidesz MP Róbert Répássy, speaking to the news agency MTI, merely characterised the affair as evidence that the Socialists “repeatedly abuse their powers as legislators”.

Outrage out front

The issue of the influence of extremists on Hungarian society has been thrown into sharp focus since autumn 2006 and a series of anti-government demonstrations. Protests began as a genuine expression of public outrage at government austerity measures and the leak of a tape on which Prime Minister Ferenc Gyurcsány acknowledged his party had systematically lied about the parlous state of national finances to secure re-election. However, far-right groups – fired up by a degree of public sympathy in adversity that has since waned considerably – began to play a more prominent role in protests and riots.

The setting up by the extremist party Jobbik of Magyar Gárda helped far-right groups, which have no representation in parliament, to attract a great deal of media coverage. The group’s activities – such as inflammatory rhetoric at gatherings and numerous marches through Roma villages against “Gypsy criminality” – have sparked outrage, primarily among Jewish groups and representatives of the Roma community that makes up some 7% of Hungary’s population.

Gárda on trial

The trial of the Magyar Gárda dragged on last Monday at Budapest City Court, amidst a strong police presence. Some fifty uniformed members of the controversial organisation held a vigil outside the courthouse.

No verdict was reached as more and more witnesses appeared to speak in defence of the Gárda. Frustration at the slow pace of the trial prompted one of the prosecuting parties, the legal counsel for the Federation of Hungarian Jewish Communities, Oszkár Egri, to comment: “There could be 32 filibusters who could read the complete works of Balzac to drag things out and stop us reaching a decision in the case.”

The move to disband the Gárda was initiated by the Budapest prosecutor’s office, which claims the group, which was officially registered as a cultural organisation, is guilty of infringing the rights of Roma citizens. The trial will continue on 1 September.

Bad news for Romania good news bill

2008-07-11T11:41:00.004+01:00

Bad news for Romania's good news bill: it has been declared unconstitutional by the Romanian constitutional court. In a refreshing victory for common sense, particularly bearing in mind that this is the same court that declared decriminalising defamation unconstitutional, the Court ruled that the bill violates broadcasters' right to freedom of expression.

Google streetview in London

2008-07-11T11:32:00.004+01:00

Cycling home the other day, I noticed not one but two Google Streetview cars prowling the Trinity Road area in south London. Or maybe it was the same one twice. Anyway, I smiled and struck a pose for the camera.

The Times has an interesting piece on what I think can be rightfully called this 'phenomenon'. Wonder how they'll go about anonymising the data.

House of Lords rules on Freedom of Information case

2008-07-11T11:25:00.003+01:00

The House of Lords has ruled on the first case before it involving the Freedom of Information Act: Common Services Agency (Appellants) v. Scottish Information Commissioner (Respondent) (Scotland). The decision concerned a request in 2005 by a Green Party researcher for data showing the incidence of childhood leukaemia at ward level in Dumfries and Galloway. The Commissioner ordered release of this statistical data in 'barnardised' form – a method for disguising statistical information to prevent identification. The Court of Session upheld the Commissioner's decision on appeal, after which the CSA took their case to the House of Lords.

The Lords ruled to allow the appeal and have remitted the decision back to the Commissioner, to establish whether or not the statistical information can be released without the risk of identifying individuals.

Good and bad must be equal on Romanian TV

2008-07-02T20:24:00.002+01:00

And this fresh in from lala-land, the Romanian Senate has apparently adopted a law requiring broadcasters to transmit equal portions of good and bad news. Apparently because negative news has an "extraordinarily harmful and irreversible impact on health." Well, there you go...