UN Human Rights Committee criticises UK libel law and practice

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

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

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

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

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

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

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

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

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

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

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

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

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

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...

Canada supreme court affirms fair comment, to consider 'public interest' defence

In a rare case (in Canada anyway), the Supreme Court in WIC Radio Ltd. v. Simpson has reaffirmed the fair comment defence to libel. For reasons that are frankly beyond me, the Court of Appeal of British Columbia had denied the defence.

Also on the Supreme Court docket, Cusson v. Quan, in which it will be asked to confirm a 'public interest' defence.

Danish court rejects cartoons hate speech appeal

Jurist legal news has this today:

Denmark newspaper not liable for Muhammad cartoons
Andrew Gilmore at 12:17 PM ET

[JURIST] The Vestre Landsret [court website, in Danish], one of the two second-highest appeals courts in Denmark, denied [text, PDF, in Danish] Wednesday an appeal of a 2006 lower court judgment [JURIST report] dismissing a lawsuit concerning caricatures of the Prophet Muhammad [JURIST news archive]. The defamation lawsuit was brought by seven Muslim groups against Jyllands-Posten [newspaper website], a Danish newspaper that printed satirical cartoons depicting [Le Monde slideshow] the Prophet Muhammad, and two of the newspaper's editors. The cartoons, including one which associated the Prophet with terrorism, caused international anger that resulted in wide-spread demonstrations, multiple deaths, the burning of Danish embassy buildings [JURIST reports], boycotts of Danish goods, and violent clashes throughout the Muslim world. The Vestre Landsret agreed with the judgment of the City Court of Aarhus that while some Muslims may be offended by the cartoons, they were an exercise in free speech, and there was no reason to believe the editors intended to insult Muslims. AP has more.

The seven Muslim groups filed the lawsuit in March 2006, following the announcement [text] by Denmark's Director of Public Prosecutions [official website] Henning Fode that the government would not press criminal charges [JURIST report] against the newspaper or its employees. A Jordanian court convicted editors [JURIST report] of two national newspapers in May 2006 and sentenced them to two months' imprisonment for publishing the cartoons. In January, a former newspaper editor in Belarus was sentenced to three years in prison [JURIST report] for reprinting the cartoons in the Zhoda newspaper. In February, Jyllands-Posten reprinted the cartoons, drawing condemnation and protests in Indonesia, Sudan, and Afghanistan [JURIST reports], among other places. Also in February, a tape recording allegedly made by Osama bin Laden was released, threatening retaliation against European Union countries [Reuters report] for reprinting the cartoons.

Costa Rica Supreme Court recognises protection of sources

The Supreme Court of Costa Rica has recognised the right of journalists to protect their sources. Nothing in English yet, and I can't make too much sense from the Spanish press release, but generally this sounds good.

Malik rebuked by court, ordered to pay cost: sources case update

The High Court has now rebuked Malik for seeking a full judicial review, ordered him to pay full costs and to hand over his research notes. This judgment, which doesn't seem to have made it onto bailii.org yet, seems wrong to me: Malik had every right to bring the rview. First of all, on the facts, since it is clear from the original production order that the police are a fishing expedition here; and secondly because the law on sources continues to be very much in flux, with this being the first case under the terrorism act and on-going developments at the ECHR (see for example Voskuil v. the Netherlands, last year). Malik's case is backed by the NUJ and the Sunday Times; I hope he'll appeal.

Malik v Manchester Crown Court & Ors: High Court rules for police, but production order must be narrowed down

Manchester Police can seek access to a journalist's research notes, but the production order must be suitably narrow, the High Court ruled in the case of Malik v. Manchester Crown Court. Lord Justice Dyson, writing for the Court, said:

"A balance has to be struck between the protection of confidential material of journalists and the interest of us all in facilitating effective terrorist investigations. It is for the court to strike that balance ... It is for the police to satisfy the court that the balance should be struck in favour of making a production order."

The case was the first brought under Schedule 5 of the Terrorism Act 2000.

UN appoints Frank La Rue as Freedom of Expression Rapporteur

After some last-minute consultation, a very angry looking Egyptian and a statement by Uruguay strongly supporting his candidacy, Frank La Rue was elected new UN Special Rapporteur on Freedom of Opinion and Expression. Good choice; he's a strong believer in human rights, freedom of expression and will have the wherewithal to interpret his new mandate wisely.

Death sentence for blasphemy

Expressindia.com reports:

"A Pakistani court handed down the death sentence to a man convicted of blasphemy on Wednesday, court officials said.

Shafeeq Lateef was charged with passing derogatory remarks against Prophet Mohammed and desecrating pages of the Quran near the city of Sialkot in Punjab province on March 17, 2006.

District and Sessions Judge Suhaib Ahmed Roomi of Sialkot awarded the death sentence to Lateef following his conviction for blasphemy. The judge gave him a separate life sentence for desecrating the Quran. The court also directed Lateef to pay a fine of Rs five lakh.

Lateef was produced in the court amidst tight security. A conviction for blasphemy in Pakistan carries the death penalty. Lateef has the right to appeal in higher courts.

The prosecution said Lateef had thrown pages of the Quran in a dirty place and passed derogatory remarks against the Prophet. Some persons caught Lateef and handed him over to police, following which he was charged under blasphemy laws."

This is truly awful and contrasts sharply with statements by the Pakistani Information Minister about how the new government values freedom of expression. I do hope something is done about this.

Strasbourg court rules - finally - for A1+

The European Court of Human Rights this morning delivered its judgment in the second application by Armenian broadcasters A1+ and ruled that the denial of a licence on seven occasions did not meet requirements of lawfulness and therefore constituted a violation of the broadcaster's right to freedom of expression.

This is a very significant decision both as regards A1+ itself and as regards the wider consequences. The judgment refers to guidelines adopted by the Committee of Ministers and Parliamentary Assembly of the Council of Europe and states, point blank, that any process by which licences are awarded or denied simply on a points basis and no further reasons are given violates Article 10 of the ECHR. In this, it entrenches and expands the Court's 2007 similar judgment in Glas Nadezhda Eood v. Bulgaria. I haven't surveyed laws in other countries but my gut feeling is that this will have implications across Europe.

Note that A1+'s first application, no. 37780/02, was rejected ratione temporis at the tail-end of May 2008, and that we are still awaiting judgment in Noyan Tapan's not dissimilar application (37784/02 - declared partly admissible in 2004).

French introduce user-driven hate speech blocking scheme

See here for details on a new deal struck between French authorities and ISPs to block "sites carrying child pornography or content linked to terrorism or racial hatred". The deal was announced by the French interior minister, and it seems that the French will use their upcoming EU Presidency to promote a similar scheme Europe-wide.

I would like to see the terms of the agreement - particularly as regards the hate speech and anti-racism provisions, which seem to me to be open to potentially wide interpretation and which can result in user-driven censorship rather than user-driven removal of child porn.

Council of Europe ministers urge Ukraine to make haste with Gongadze investigation

The Committee of Ministers of the Council of Europe has urged Ukraine to take serious steps to progress the investigation of the Gongadze killing. The Committee issued a Resolution as part of the follow-up procedure to the European Court of Human Rights judgment in the case, which declared Ukraine in breach of articles 2 (right to life), 3 (freedom from torture and inhuman or degrading treatment) and 13 (right to an effective remedy).

ECOWAS Court orders release of journalist

In a landmark ruling, the ECOWAS Court of Justice has ordered the release of journalist Chief Ebrima Manneh. It also awarded USD100,000 in damages against the Gambian government. Manneh was last seen when he was arrest by Gambian security forces some time ago; his present whereabouts are officially unknown. The Gambian authorities have denied they hold him; it did not cooperate in the proceedings before the ECOWAS Court.

This is the first freedom of expression ruling by the ECOWAS Court, or any African regional court, and will likely lead to more cases being lodged there. It is the only international human rights court not to require that local remedies are exhausted before a case can be lodged.

Indonesian Constitutional Court petitioned to remove prison sentences for libel

LBH Pers, an Indonesian legal aid group for press, have lodged a petition before the Indonesian Constitutional Court asking it to declare that the sanction of imprisonment in defamation cases is a disproportionate and unconstitutional restriction on the right to freedom of expression. Specifically, the Court has been asked to review Articles 207, 310(1,2), 311(1) and 316 of the Criminal Code. Under Articles 310(1,2) and 311(1), those found guilty of defamation or libel face jail terms of up to four years. The Court has also been asked to review Articles 207 and 316 because they provide "special treatment and protection" to state officials and could harm freedom of expression.

There is a mixed track record for freedom of expression at Indonesian higher courts. In July 2007, the Constitutional Court struck a blow for freedom of expression when it held that two colonial criminal code provisions on sedition and hate speech violated the right to freedom of expression. Earlier, in December 2006, the Constitutional Court declared various criminal provisions that provided special protection to the president and other public figures for insult were incompatible with the constitutional right to freedom of expression (a translation of the decision should eventually appear here). And also in 2006, the Supreme Court overturned a prison sentence for defamation against Bambang Harymurti. However, in 2007, the Supreme Court awarded Suharto 100mUSD in defamation damages in a case against Time Asia and USD600,000 against Jawa Pos, judgments widely seen as indicating a worsening climate for media freedom.

Philippines court imprisons journalist for libel

Daily Tribune publisher Ninez Cacho–Olivares, a journalist with over 20 years experience, has been sentenced by the Makati regional trial court to a prison term of six months to two years and a fine of more than 5m Pesos (roughly USD100,000) for libel. Olivares had written a piece, in 2003, which alleged that then Ombudsman Simeon Marcelo chose people “connected” to a particular law firm to handle a complaint by its client Asia’s Emerging Dragons Corp. against the winning bidder in the build-operate contract for an airport terminal and former secretaries of the Department of transportation and communications.

The sanction is in clear defiance of a recent Supreme Court circular that all but removed imprisonment as a sanction for defamation (although it did not say it in so many words).

The case has been appealed.

Free expression - religion rumblings continue (so what else is new), names of UN candidates published

Further to the UN Human Rights Council amending the Mandate of the UN Special Rapporteur on Freedom of Opinion and Expression (the proceedings of which I posted a video of earlier), both the Council itself and Pakistan, which sponsored the mutilating amendment, have recently defended themselves against the criticism. The director of Pakistan's Foreign Ministry's human rights department said the abuse of free expression to defame religions, for example in the film Fitna, was seriously divisive to societies and needed to be checked. The chair of the Human Rights Council, Doru-Romulus Costea, reportedly called the criticism "premature". The Council appoints a new rapporteur June 18; the front runner is Frank William La Rue Levy, former Chair of the Guatemalan Presidential Committee on Human Rights. Other candidates are Alfred Maurice de Zayas and Judy McGregor.

In other news... Danish press report that the Jordanian prosecutor has summonsed the cartoonists and editor behind the recent republication of the Mohamed cartoons. The purpose of this: not necessarily getting them before a Jordanian court, but to keep going the discussion on the interplay between freedom of expression and (the claimed right to be free from insult on) religion. My two cents on that: the cartoons were and are a legitimate exercise of freedom of expression. While surely offensive they did not incite hatred against anyone, other than against the cartoonists and the country they were from but incitement of hatred against oneself is not the kind of incitement that is illegal under international law....

British news websites liable abroad for invasion of privacy

In many ways it is a surprise that it has taken this long: Mirror Group Newspapers and Associated Newspapers have been found guilty in France of invasion of privacy for stories on their respective newspaper websites about Kylie Minogue and her ex, Olivier Martinez. Martinez was awarded €4,500 per publication. Although it is in my view wholly predictable that this would happen, it does create a significant chill on media freedom in the UK: with pretty much every newspaper now publishing on-line, French privacy laws, which are notoriously stricter than the British, may well now set the standard. I don't believe this is a good thing - particularly with the Mosley cases pending in the French courts... Something to consider in the European Commission's pending review of the scope of the Rome II Convention?

CoE Access to Information Convention now at PACE

Just a note here: the Committee of Ministers has transmitted the draft Convention on access to official documents and the draft Explanatory Memorandum to the Parliamentary Assembly. Another lobbying opportunity.

More contempt charges for journalists at ICTY

Baton Haxhiu is the latest journalist to be charged for contempt of court by the International Criminal Tribunal for the Former Yugoslavia. He is alleged to have revealed the identity of a protected witness in a piece he wrote in 2007.

Haxhiu has joined a growing group of journalists, all from the Balkans, who have faced contempt proceedings for revealing the identity of protected witnesses. Others include Ivica Marijacic and Josip Jovic (Jonathan Randal is perhaps the best-known contempt defendant before the tribunal, but his case concerned the journalistic privilege not to testify in court unless as a last resort).

The cases are all on the murky side but do raise important questions of freedom of expression and the administration of justice. The Representative on Freedom of the Media of the OSCE even intervened in the Josip Jovic case, when the 'protected witness' was a very prominent Croatian politician. Jovic was eventually convicted and ordered to pay 20,000 Euros, and his conviction was upheld on appeal (the tribunal published a useful summary of the proceedings against him).

South Africa Constitutional Court on open justice and national security

The South African Constitutional handed down its judgment in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services last week. In what seems like a reasonably good judgment, the Court ruled that the in-camera evidence in the case of former National Intelligence Agency chief Billy Masetlha be made available to the public, but that certain disputed parts should not be published. This follows Independent Newspapers' application to get access to restricted material in the case of the former spy boss. The Minister for Intelligence Services, Ronnie Kasrils, had opposed the application on the grounds that the material was classified and could not be divulged, citing national security concerns.

The following is from the Court's press release:

Writing for the majority, Moseneke DCJ considered the cluster of rights that establish the right to open justice. He observed that the right to open justice is not absolute, but that a court must decide in all the circumstances of a particular case whether its limitation is in the interests of justice. Moseneke DCJ recognised that what is in the interests of justice has to be considered in the light of two competing constitutional claims: the first being open justice; and the second being the government’s obligation to pursue national security. In considering the Minister’s argument that the fact that documents are classified renders them immune to disclosure, he held that the mere fact that the documents in a court record carry a security classification does not oust the jurisdiction of a court to decide whether they should be protected from disclosure to the media and public.

Moseneke DCJ then considered each of the documents separately. He ruled that the whole of the in camera affidavit made by Mr Masetlha should be made available to the public but that the three disputed annexures to the affidavit should not.

Yacoob J wrote a dissenting judgment. He held that all the documents should be released to the public mainly because the information in them is in the public interest. The national security interest, he reasoned, may be protected by further redaction of the documents. His judgment emphasises that the public version of the Inspector General’s report by the government was both misleading and deceptive and took the view that the Court should not be used as an instrument for concealment in the circumstances.

Yacoob J further held, in relation to the interlocutory application, that it would have been in the interests of justice for the documents to be made available to the legal representatives of Independent Newspapers and some of their senior personnel to help Independent Newspapers prepare their case.

Sachs J in his judgment, which aligns itself with the outcome proposed by Yacoob J, placed reliance on the constitutional principle of openness to justify the disclosure of the relevant material. In contrast to the hegemonic and secretive agencies of the past, he reasoned, the South African intelligence services are required at all times to act within the limits defined by the Constitution, and in line with the spirit and purport of the Constitution. Sachs J concluded that more damage would be done to the national interest in general, and to the vitality of the intelligence service in particular, by withholding stale and routine information about the workings of the agency, than by allowing the normal rules governing public access to all court documents to apply.

Singapore's film censorship system in action

This is a beautiful example of Singapore's film censorship system in action: part 1 and part 2 of a You Tube video showing Singapore 'Media Development Authority' staff and police barging in and stopping a private screening of 'One Nation Under Lee', a film about - you guessed it - censorship under the Lee regime.

Tesco case update: Guardian files defence

The Guardian have filed their defence against the Tesco libel claim. In line with their piece from a little while ago, they have bowed to the libel claim but are resisting the charge of malicious falsehood.

They also maintain that Tesco does evade its tax obligations and that its ethical stance is "a sham". The defence papers as filed calculate that Tesco have avoided Stamp Duty Land Tax to the tune of £85-95m, which though not as large as the original claim of hundreds of millions evaded in corporation tax is still a tidy sum of money. The defence says: "SDLT avoidance was the principal objective of the structure of the schemes analysed in the articles. Tesco has carefully built up a reputation for not being party to tax avoidance and therefore for being socially responsible. That reputation is not deserved and the public have been misled."

Meanwhile, Kamol Kamoltrakul has been in touch saying that Tesco Lotus have still not been in touch with him. His defence was filed May 2.

Dutch cartoonist arrested, prosecuted for inciting hatred against muslims

Dutch cartoonist "Gregorius Nekschot" has been arrested for inciting hatred - see here and here for an English language report. A criminal complaint for inciting hatred was filed against him three years ago; apparently he has been arrested only now because police had trouble ascertaining his identity and finding him. Which is odd because he was interviewed for Danish TV a few months ago... The charge is - apparently - insulting and inciting hatred against muslims.

Some of the cartoons have been republished by De Volkskrant, one of the main national daily newspapers, and they can also be found on Nekschot's own website. Nekschot was a smalltime cause celebre in the Netherlands, defending cartoonists' rights to go to the limit and championed by people such as Theo van Gogh. I can see how people might be offended by his work but inciting hatred? No. And to cause offence is an entirely legitimate activity, protected under the Dutch constitution as well as under international law. The prosecutor's office is erring gravely here; in view of what happened to Van Gogh, they should be protecting this man, not prosecuting him.

Khushboo criminal libel case stayed until further notice

The Indian Supreme Court has stayed proceedings in the criminal libel case that had been launched against the actress S Khushboo, pending a full hearing of the case on July 7.

The litigation arose out of comments that Kushboo had made about sexual morals in India, which were opposed by various groups who launched defamation cases against her, claiming that her statement that Indian girls were "coming out of their shells" was denigrating. A total of 23 cases were registered against her in courts all over Tamil Nadu, and the Madras High Court on April 30 refused to quash the cases, transferring them to a lower court for trial. Aggrieved by the Madras High Court order, the actress appealed to the Supreme Court claiming all the cases were false and were filed against her with the sole aim of getting political mileage and publicity.

Update on Philippines impunity cases

The Philippines Center for Media Freedom and Responsibility today released a very useful update on a number of impunity cases currently pending in the Philippines. All involve unresolved killings of journalists; and an interesting feature is that all have been or are being tried in Cebu, a venue where the defendants have less (political and other) influence.

The trial of the suspected murderers of Rolando Ureta, a journalist who was killed on 3 January 2001 in Kalibo, Aklan, started on May 9 in Cebu City. The transfer of venue had been requested by the Freedom Fund for Filipino Journalists, citing the influence of the accused in Aklan, and granted by the Supreme Court on 18 March 2008, alongside a petition for change of venue of the trial of the murderers of Herson Hinolan, a journalist who was killed in Aklan in 2004.

Two other successful prosecutions of killed journalists have recently taken place in Cebu: the 2005 prosecution of the killers of Edgar Damalerio, which resulted in a life sentence for gunman and former police officer Guillermo Wapile; and the 2006 prosecutions of the killers of Marlene Esperat, which resulted in life sentences for the hitman, a look-out and a co-conspirator. The effort to secure the arrest of those who ordered the Esperat killing is still on-going.

More updates on the Ureta case can be found here; info on the Damalerio case here; on the Esperat case here; and on the Hinolan case here.

Armenian court rules broadcasting fee system unconstitutional

The Armenian Constitutional Court ruled yesterday that Article 53(3) of the Armenian Law on Television and Radio, which gives the government unfettered discretion to determine the level of the broadcasting fee, is unconstitutional. The case had been brought by Radio Hay, a Yerevan-based broadcaster, who complained that the Ministry of Transport and Communications had demanded it pay a fee of USD27,000 when other broadcasters paid far less.

The full judgment will eventually appear here.

ECHR: saying that earthquake is caused by wrath of god is not hate speech

The European Court of Human Rights held that a criminal conviction for saying that the Marmara earthquake, which killed some 20,000 people in 1999, was divine punishment for the behaviour of Turkey's military and generally for people’s ingratitude towards God, their sinful ways and their failure to praise God, violated the applicant's right to freedom of expression. In Kutlular v. Turkey (application no. 73715/01), the Court said that such speech, though offensive to non-believers, was not capable of stirring hatred against non-believers.

Google Street View fleet prowls Paris

The Guardian blogs this morning picked up on the news that Google will soon be launching the Street View version of its maps service in Europe, and predicts law suits in countries with strict privacy laws, such as France, despite Google's intention to pixelate all faces. They may well be right - identifiable data goes beyond a person's face; and one also wonders how the British courts will react in the aftermath of the Court of Appeal ruling on the JK Rowling toddler photos.

Pictures of the Google fleet filming Paris have been published here and elsewhere. So if you see a black Opel/Vauxhall Astra with a large camera on its roof approaching, smile 'cos you're on not-so candid camera...

Danish cartoons complaint inadmissible

The United Nations Human Rights Committee declared inadmissible a complaint from two Danish nationals who alleged that the cartoons published in Jyllands-Posten (you know, the Danish cartoons - these) had resulted in discrimination and attacks on their reputation, and that they had been denied an effective domestic remedy for incitement of hatred against them. The admissibility decision does not go into the merits of the complaint but finds that domestic remedies have not been exhausted.

Ahmad and Abdol-Hamid v. Denmark, Communication no. 1487/2006, 18 April 2008.

more Malaysia sedition charges

It is as if a memo has been circulated among Malaysia's politicians and prosecutors reminding them of the attractiveness of Malaysia's sedition laws. In addition to last week's blogger case, the Southeast Asian Press Alliance has now reported that two other sedition charges have been filed.

The first two cases were lodged on the same day. On 6 May 2008, a well-known online critic, Raja Petra Kamaruddin, and a commentator on his website, Syed Akbar Ali, were charged under the 1948 Sedition Act in the Sessions Court in the state of Selangor and the capital of Kuala Lumpur, respectively. Raja Petra and Syed Akbar are both denying the charge, and while Syed Akbar was released the same day on a bail of RM3,000 (approx. US$939), Raja Petra initially refused to post bail on a matter of principle needed four days for his wife to persuade him to change his mind. Raja Petra, 58, who runs the popular Malaysia Today website (http://www.malaysia-today.net), was charged over his 25 April article, "Let's send the Altantuya murderers to hell", which implicated Deputy Prime Minister Najib Abdul Razak and his wife in the murder of a Mongolian national. Syed Akbar, 48 was charged over his 5 June 2007 online response to another article by Raja Petra, "Malaysia’s organised crime syndicate: All roads lead to Putrajaya". His trial will begin on 6 June 2008.

The third case was lodged on May 9, Prime Minister Abdullah Ahmad Badawi reportedly ordered a ruling party official to lodge a separate sedition complaint against Karpal Singh, a top politician with a rival party, for questioning the jurisdiction of sultans. In this case, six members of the dominant ruling party, United Malays National Organisation, and a coalition of Malay non-governmental organisations filed two police reports against Karpal for making allegedly seditious remarks against one of the monarchs who historically rule nine out of 14 states of the constitutional monarchy in Malaysia. A 5 May report in the "Star" English daily quoted the chairperson of the Democratic Action Party as saying: "Sultan Azlan Shah did not have any say, as the Ruler of Perak, in the decision made by the state government and, by law, the palace cannot order the state government to reinstate Jamry [Sury as the state's Islamic Department director]." Jamry had been transferred to another department for refusing to cooperate with the new ruling state government in Perak, which was formed by the federal-level opposition coalition, People's Pact. The monarchy, a Malay sultanate, is one of the sensitive topics in multi-ethnic Malaysia, which is dominated by the ethnic Malays, followed by the Chinese, Indians and indigenous groups.

This could be a good opportunity to challenge the constitutionality of the charges, particularly if, as I hope, the Ugandan Supreme Court rules that the virtually identical Ugandan sedition law is unconstitutional. That might just give it the push it needs - earlier attempts having been unsuccessful. Watch this space for further developments.

Mwenda sedition x2

Last Friday, Andrew Mwenda was formally charged with sedition for a story in his Independent bi-monthly which alleged UDPF involvement in killings in Northern Uganda. Independent reporters John Njoroge and Charles Bichachi were charged alongside Mwenda.

This is not the first time Mwenda has been charged with sedition. He is currently fighting in the Supreme Court earlier charges which arose from a radio-show Mwenda had in 2005 in which there had been speculation about the death of Southern Sudanese leader John Garang. Mwenda is challenging the constitutionality of the Penal Code sections under which he has been charged: Sections 39, 40, 41, 42, 43 and 44, which establish sedition and promoting sectarianism as offences against the state, and Section 179, which establishes the offence of libel. Section 39 defines sedition as an "intention to bring into hatred or contempt or to excite disaffection against the person of the president, the government as by law established." Section 40 provides for a five years sentence or a fine of USh50,000 on conviction. On second conviction, the sentence can be up to seven years. It is reported that several journalists have been prosecuted under these Penal Code provisions.

This earlier case has been ongoing for several years now and was scheduled to be heard in April 2008. It was not; and I'm not aware if a new date for the hearing has been set. He is asking that the new charges are postponed pending the Supreme Court's determination of the constitutionality of the sedition provisions. Which makes sense to me.

By the way, here is the army's response to the April 2008 allegations, which makes inaccurate by-the-by remarks about the Freedom of Information Act and describes Mwenda as "the single biggest beneficiary of Uganda's freedom of press and speech". Ah, so that's why he is resisting multiple sedition charges filed against him and had to fight for years to overturn a 'false news' charge against him. Sure, that makes sense, he is really enjoying his freedom of speech. Anyway, it makes you wonder why they need to resort to filing sedition charges, if the government can just use the state-owned newspaper to promote its own version of events.

UK formally abolishes common law offences of blasphemy and blasphemous libel

Following lengthy debates in both the House of Lords and the House of Commons, the common law offences of blasphemy and blasphemous libel were formally abolished yesterday. Their abolition was long overdue and hopefully will set some kind of example to other countries were these laws are still abused.

This does not create a free-for-all to whip up hatred against religion: as of last year, this is illegal - under the Racial and Religious Hatred Act 2006). But it does mean that open "discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system" is no longer formally prohibited. Which is a good thing.

Tesco libel suits - more updates

The Thai National Human Rights Commission and the National Foundation of Consumers today held a joint seminar on Tesco's negative impact on communities and the media's freedom to report and criticise. Not sure if they also issued a statement but it keeps the story running so good stuff. Reported in today's Nation newspaper.

Meanwhile, in the UK, the Guardian has reportedly expressed its bewilderment with Tesco's decision to pursue its case against the newspaper despite last week's apology (which wasn't quite that, though, as I reported a few days ago).

Frankly I share their bewilderment and I also wonder why Tesco are persisting with the Thai cases. Not only do they not have a very strong legal case, you would have thought Tesco had learned from past mistakes of others. The McLibel case springs to mind: back in 1990, McDonalds sued two campaigners for libel after they had made allegations about the environmental impact of McDonalds food as well as about health risks. While McDonalds eventually won the suit in the UK, it cost them dearly in terms of PR - the allegations were hotly debated in court and received broad media exposure - and the decision was declared a violation of the campaigners' right to freedom of expression by the European Court of Human Rights. Are Tesco's PR people not aware of this? Nevermind its legal and CSR teams?

JK Rowling's son wins privacy fight

The English Court of Appeal ruled today that photo agency Big Pictures breached Rowling's son's right to privacy and family life when it took long lens photographs of her son being pushed in a pushchair.

This is a groundbreaking judgment. It is the first time that the Court of Appeal has ruled that privacy is engaged when an inoffensive, ordinary photograph is taken of an individual going about their ordinary everyday business in the high street. It follows the Canadian and French approach to privacy and goes even beyond - I think - what the European Court of Human Rights would rule should it ever have such a case before it.

At the High Court, Mr Justice Patten had ruled against Rowling's son, saying that "on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy; and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and the decision in Campbell, I am bound to follow Campbell in preference" (paragraph 68 of the High Court judgment).

Wrong, says the Court of Appeal: "We have reached a different conclusion from that of the judge. In our opinion it is at least arguable that David had a reasonable expectation of privacy. The fact that he is a child is in our view of greater significance than the judge thought." The Court goes on to refer to the UN Convention on the Rights of the Child and to the PCC Code, and then points out the neither Campbell nor Van Hannover were cases about children. So, the Court argues, it has before it a relatively clean slate on which to write new law. It then states (and I'm quoting at length with a few chops - notably the references to the New Zealand Court of Appeal's ruling in Hosking v Runting):

"50. ... the parents' wish, on behalf of their children, to protect the freedom of the children to live normal lives without the constant fear of media intrusion is (at least arguably) entirely reasonable and, other things being equal, should be protected by the law. It is true, as the judges say at [164], that the photographs showed no more than could be seen by anyone in the street but, once published, they would be disseminated to a potentially large number of people on the basis that they were children of well-known parents, leading to the possibility of further intrusion in the future. If the photographs had been taken, as Lord Hope put it at [123] of Campbell, to show the scene in a street by a passer-by and later published as street scenes, that would be one thing, but they were not taken as street scenes but were taken deliberately, in secret and with a view to their subsequent publication. They were taken for the purpose of publication for profit, no doubt in the knowledge that the parents would have objected to them.

...

52. The approved test is not whether a person of ordinary sensibilities would find the publication highly offensive or objectionable, even bearing in mind that young children are involved, but (as Lord Hope put it in the passage quoted at [35] above) what a reasonable person of ordinary sensibilities would feel if he or she was placed in the same position as the claimant and faced with the same publicity. The judges did not consider either of the two questions posed through the eyes of the reasonable child, or (more realistically) through the eyes of the reasonable parent on behalf of the child.

...

55. We recognise that there may well be circumstances in which there will be no reasonable expectation of privacy, even after Von Hannover. However, as we see it all will (as ever) depend upon the facts of the particular case. The judge suggests that a distinction can be drawn between a child (or an adult) engaged in family and sporting activities and something as simple as a walk down a street or a visit to the grocers to buy the milk. This is on the basis that the first type of activity is clearly part of a person's private recreation time intended to be enjoyed in the company of family and friends and that, on the test deployed in Von Hannover, publicity of such activities is intrusive and can adversely affect the exercise of such social activities. We agree with the judge that that is indeed the basis of the ECtHR's approach but we do not agree that it is possible to draw a clear distinction in principle between the two kinds of activity. Thus, an expedition to a café of the kind which occurred here seems to us to be at least arguably part of each member of the family's recreation time intended to be enjoyed by them and such that publicity of it is intrusive and such as adversely to affect such activities in the future.

56. We do not share the predisposition identified by the judge in [66] that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy. All depends upon the circumstances. The position of an adult may be very different from that of a child. In this appeal we are concerned only with the question whether David, as a small child, had a reasonable expectation of privacy, not with the question whether his parents would have had such an expectation. Moreover, we are concerned with the context of this case, which was not for example a single photograph taken of David which was for some reason subsequently published.

57. It seems to us that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. That is the context in which the photographs of David were taken.

58. It is important to note that so to hold does not mean that the child will have, as the judge puts it in [66], a guarantee of privacy. To hold that the child has a reasonable expectation of privacy is only the first step. Then comes the balance which must be struck between the child's rights to respect for his or her private life under article 8 and the publisher's rights to freedom of expression under article 10. This approach does not seem to us to be inconsistent with that in Campbell, which was not considering the case of a child.

59. In these circumstances we do not think that it is necessary for us to analyse the decision in Von Hannover in any detail, especially since this is not an appeal brought after the trial of the action but an appeal against an order striking the action out. Suffice it to say that, in our opinion, the view we have expressed is consistent with that in Von Hannover, to which, as McKennitt v Ash makes clear, it is permissible to have regard. We do not disagree with the judge's summary of the decision in Von Hannover which we have quoted at [43 ix)] above. Mr Warby drew our attention to the oral submissions made to the ECtHR by Mr Prinz on behalf Princess Caroline, where he emphasised the campaign of harassment conducted against her by the German media. That was indeed part of the context in which the decision was made. For his part Mr Spearman stressed the fact that some of the photographs, the publication of which was held to infringe Princess Caroline's rights under article 8, showed her doing no more than walking in public.

60. The context of Von Hannover was therefore different from this but we have little doubt that, if the assumed facts of this case were to be considered by the ECtHR, the court would hold that David had a reasonable expectation of privacy and it seems to us to be more likely than not that, on the assumed facts, it would hold that the article 8/10 balance would come down in favour of David. We would add that there is nothing in the Strasbourg cases since Von Hannover which in our opinion leads to any other conclusion: see eg Reklos and Davourlis v Greece, petition no 1234/05, 6 September 2007.

61. In these circumstances, the judge was in our judgment wrong to strike out David's claim on the ground that he had no arguable case that he had a reasonable expectation of privacy. Understandably, the judge did not consider whether, if article 8 was engaged, David had an arguable case that the balance should be struck in his favour. In our opinion David has an arguable case on both points and his parents should be permitted to take his claim to trial on his behalf."

So the Court rules that there was an arguable expectation of privacy in the taking and publication of the photograph, and hints that, at trial, a court would probably rule for Rowling's son. This is novel and represents a further creep in privacy law, and a corresponding restriction of freedom of expression. This will be of immediate interest to paparazzi, and few will cry for them. But the longer-term implication is that the realm of privacy has been extended, beyond what the European Court has determined in cases such as Von Hannover, and that certainly is concerning.

UN Special Rapporteur on Freedom of Expression

Much has been written about the mutilation of the SR's mandate (this was the original draft, sponsored by Canada and others). Live video of it happening has been archived here: the 'fun' starts at 40 minutes, when Pakistan introduces the OIC amendment requiring the mandate to also report on certain abuses of free speech, and it really hots up at around the one hour six minutes mark with the unscripted introduction of a subsequent Cuban amendment stressing "the importance for all forms of media to repeat and to deliver information in a fair and partial manner" (it should probably be 'impartial' - whatever. The Cuban amendment has so far been reported officially only in this press release). The Cubans had given no notice whatsoever of their amendment, and this causes all manner of procedural confusion over whether it should be allowed or not. The Chinese intervene to support the amendment while the Slovenians, who hold the EU presidency at the moment and speak for the 'pro speech group', frantically wave to get the floor but are ignored. The President eventually exercises his discretion and allows the amendment causing the Slovenians to object, but to no avail.

What a mess ... I can't wait to find out who they'll appoint as rapporteur. This will happen at the 8th session, on June 18 according to the provisional programme of work.

Ghana: reinstate criminal libel?

Ghana is one of the few countries to have completely decriminalised libel (according to ARTICLE 19's defamation map of the world, most countries have and apply criminal defamation laws). But, with the quality of journalism being what it is (ie often poor), some voices have advocated for its reinstatement in Ghana.

But does bad writing justify reintroducing criminal libel laws? Does throwing someone into prison, sentencing them to a heavy fine or even imposing a suspended sentence on them improve their writing? No, it does not. Appropriate civil laws suffice to deal with defamatory writing; even better, bringing in an independent press council, de-linking commercial interests and editorial policies and some attention to journalism education would go a very long way to improving the quality of journalism. In Ghana and elsewhere. Fortunately some writers in Ghana agree with that sentiment.

Judge acquits Goran Gavrilov attack suspects

The suspected attackers of Goran Gavrilov, the journalist who was violently attacked (see also here for more background) were set free last week, with the judge refusing to admit a raft of forensic evidence (including significant DNA evidence and evidence that the bullet matched one of the attackers' guns). The prosecution is appealing I am told.

Malaysian jailed pending hearing on charges of sedition

Reuters has reported that "a Malaysian man opted to go to jail on Tuesday instead of paying bail after he was accused of sedition for implying the country's deputy premier had a hand in the murder of a Mongolian woman, his lawyer said."

It's a convoluted story and the allegations are hard to establish, but not something anyone should be imprisoned for. Yet another example of why these kinds of laws need to be repealed - they were brought in by colonial repressors and are used now as they were then - to silence oppositional voices.

Tesco libel suits update

An update on Tesco's recent libel storm. Two sets of cases are ongoing: one set being populated by three Thai writers, and the other by the UK Guardian newspaper. The Guardian is being sued for allegations about tax evasion; the Thais for criticising Tesco's expansion tactics in Thailand. The suits have been ongoing for a few months now.

The Guardian have exploded their suit, claiming that there were wrong to allege evasion of corporation tax in their original story (only available through google's cache, and probably not for much longer) - sorry, they say, it was Stamp Duty Land Tax they were evading. Over to Tesco. I say the gist of their story stands and is even stronger now: that Tesco have set up "a complex web of companies, trusts and partnerships" to evade taxes. Nice background piece on the investigation here.

Meanwhile, in Thailand... A raft of UK writers have written to Tesco to protest about the suits, in the Guardian (twice) and the Times; both the Times and the Guardian have also picked up on the story that Tesco never actually approached any of the three for an apology or response before suing. A real groundswell is now building in UK broadsheets and mainstream media and some Thai media against Tesco: good pieces by the BBC, Channel 4 TV, the Independent, Bangkok Post, in addition to a raft of stories in the Guardian.

The Guardian has done a useful backgrounder.

First court date for Kamoltrakul: May 6.

Human Rights Search Engine Launched

A new search engine has been launched specialising in human rights sites. Called 'hurisearch', the engine has spidered over 2 million pages on specific human rights sites (mainly NGOs and academic institutions) and - from the quick spin I've given it - seems to deliver pretty good results. For example a search on'blasphemy' delivered mostly highly relevant academic and NGO papers on the subject, as well as fairly up-to-date reports of cases. Compare this with the Google result, which is very different (the specialised resources are found way below wikipedia (not to be knocked, but still), some seemingly random blogs and on-line dictionary results).
The inteligent user/researcher would use both, depending on the kind of results you are looking for.

In Firefox, you can set hurisearch as the default search engine for the location bar by typing about:config in the location bar, then enter 'keyword' as the filter and set the keyword.url value to "http://hurisearch.nidelven-it.no/search/search.jsp?query= " (without the quotation marks).

US Act to regulate Yahoo and co. in China reintroduced

U.S. congressman Chris Smith has announced that he will reintroduce legislation which aims to promote free expression and the free flow of information on the Internet by preventing U.S. companies from aiding regimes who restrict access to the Internet.

See here for a pretty good and thoughtful post on it (although I don't necessary agree with it!).

UN Security council notices journalists

In what I think is a bit of a first, the UN Security Council has recognised that journalists need protection in war zones. Resolution 1738(2006), adopted on 23 December 2006,

"1. Condemns intentional attacks against journalists, media professionals and associated personnel, as such, in situations of armed conflict, and calls upon all parties to put an end to such practices;
2. Recalls in this regard that journalists, media professionals and associated personnel engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians and shall be respected and protected as such, provided that they take no action adversely affecting their status as civilians. This is without prejudice to the right of war correspondents accredited to the armed forces to the status of prisoners of war provided for in article 4.A.4 of the Third Geneva Convention;
3. Recalls also that media equipment and installations constitute civilian objects, and in this respect shall not be the object of attack or of reprisals, unless they are military objectives".

The full text can be accessed through here.