Just seen a group of Dortmund fans wandering around Deptford market. Famous the world over.
My letter to the Guardian is available online here.
The Russian authorities have not only targeted foreign NGOs (Report, 28 March), but also domestic human rights groups, includingMemorial, which received the Index on Censorship 40th Anniversary award last year for its courageous research into the crimes of the Soviet regime. Other groups targeted include theMoscow Helsinki Group, the oldest Russian human rights NGO. Russia should comply with its international commitments and uphold freedom of expression, assembly and association – and stop these raids. The EU and its member states should take action in accordance with the EU commitment to support and protect civil society, and human rights activists. The situation in Russia is in decline. Index joins an appeal by our partners in the Civic Solidarity Platform, a coalition of 50 human rights NGOs from around the OSCE, that urgent action must be taken now to prevent the situation for human rights activists on the ground in Russia getting worse.
Head of advocacy, Index on Censorship
Yesterday I wrote about the return of private daily newspaper to Burma on Index on Censorship:
1 April heralded the return of private daily newspaper to the streets of Burma. Since the 1962 Printers and Publishers Registration Act the state has held highly restrictive powers to license newspapers and publishers creating one of the most hostile environments on earth for a free print media. Since the transition period, the new President Thein Sein has signalled that the government would liberalise restrictions on the media. Prior to the return of daily newspapers, privately-owned weekly journals had begun to flourish as demand for independent news markedly increased. On 1 February this year, the government launched the process to allow the independent media to bid for daily licenses.
Reaction in China to the relaxation of Burma’s highly restrictive media laws was pointed according to the Want China Times:
Some internet users have expressed their envy with coded comments such as “although we cannot eat it yet, at least we can smell it,” while others suggested such media freedom is not suited to China’s current circumstances. “Myanmar has stepped on the road toward democracy and freedom. Will China have its day? Let us wait and see,” an internet user said. And, “Myanmar’s achievement was earned by opposition forces led by Aung San Suu Kyi. China has not reached this stage,” another stated.
It’s a strange idea that China must earn her democracy.
Blogger Jacqui Thompson is now £25,000 poorer after losing a libel action against the chief executive of Carmarthenshire county council, Mark James. The judge found the posts on her Carmarthenshire Planning Problems blog to be defamatory and that she was engaged in an “unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other council officers”.
Yet while Thompson paid for the case out of her own pocket, the ratepayers of Carmarthenshire paid for the chief executive’s libel action. In these straitened times, is it really fair that taxpayer’s money is being used to fund a libel case?
Carmarthenshire council is not alone. South Tyneside council is paying for its chief executive and council leader to bring proceedings against one of its own councillors. In South London the Durand Academy, a primary school, has on multiple occasions funded libel claims. This is a live debate with the government’s Defamation Bill (the first wholesale reform of our archaic libel law since 1843 ) currently passing through parliament after a long fight by the Libel Reform Campaign. An amendment tabled in the House of Lords by the Labour party, with support from influential Tory Peer Lord McWhinney and Liberal Democrat Peer Anthony Lester will (if passed by the Commons) block corporations and public bodies from suing individuals for libel, unless the libel has caused “substantial financial harm”. However an important loophole remains.
Public bodies themselves cannot sue for defamation. Derbyshire county council vs. Times Newspapers Ltd (1993) rules out public bodies from suing for libel. Lord Keith’s judgement makes clear the importance of “uninhibited public criticism” of democratically elected and public bodies.
The remaining loophole is the judgement does not prevent public bodies from using taxpayer’s money to fund libel actions on behalf of their staff.
In the Carmarthenshire case, Mr Justice Tugendhat reiterated the importance of the bar on public bodies suing directly, and emphasised the greater latitude members of the public had in criticising public bodies, but did not believe that allowing councillors or officers of a local authority to sue for libel would infringe the right to freedom of expression. “The decision of the House of Lords is binding on me. But in my judgment there is nothing in the suggestion that it is contrary to Art 10 that a member or between officer of a local authority should be able to sue for libel,” he said.
He also refused to restrict the ability of public bodies to use taxpayer’s money to pay for libel actions on behalf of their employees saying that such indemnities needed to be challenged: “There are procedures by which the grant of an indemnity by a council to an employee in respect of the costs of litigation can be challenged.”
Yet the procedures to challenge are complex and only relate to whether the local authority is funding the libel action to circumvent the Derbyshire principle. The default position in law established by Mr Justice Sullivan in Comninos vs Bedford borough council is that councils can fund libel actions on behalf of their staff – unless challenged. Local bloggers can now find themselves sued by a council employee backed with the full financial weight of the local authority, and yet will only know whether this is legal or not if they challenge this funding separately. It’s hard to see how any blogger or citizen critic could fund such a challenge unless they have very deep pockets indeed.
These indemnities have a corrosive effect on local democracy. Local authorities, sensing the controversy over using taxpayers’ money to sue their own citizens, are not transparent about the costs of these claims.
I tabled a freedom of information request to Carmarthenshire to find out how much it had spent on the libel action. It refused to disclose this information, citing an exemption. From a wider request, I did find out that the council spent £891,433 in legal fees in 2012. This is the same county council that is making 450 people redundant and closing down training services for disabled people.
The defamation bill will continue the bar on public authorities directly suing their critics for defamation. Yet, without action to stop them directly funding libel actions on behalf of councillors or officers, the power and resources of the state can still be used to silence citizen critics.
It is self-evident that public servants should be able to sue for defamation if directly and unfairly criticised, but it is not fair to expect taxpayers in this period of austerity to pick up the bill.
This article was originally published on the Guardian Local Government Network on 2 April 2013.
Azerbaijan has just passed a strict anti-protest law clearly in violation of its obligations under the European Convention on Human Rights. This morning 12 young people were fined a significant amount of money
after Saturday’s protest. I hope they take this all the way to the European Court of Human Rights.
Via – Khadija Ismayilova
Ebulfez Gurbanli-500 AZN (£395)
Babek Hesenov-600 AZN (£472)
Renad Najafov-600 AZN (£472)
Rashad Hasanov-600 AZN (£472)
Zakir Rehmanov-400 AZN (£318)
Vusal Bayramov-500 AZN (£395)
Tural Abbasli – 600 AZN (£472)
Ulvi Hesenli 600 AZN (£472)
Mehemmed Ibrahim 500 AZN (£395)
Isayev Hemid 500 AZN (£395)
Kazimzade Azer 400 AZN (£318)
Elisoy Eltac 300 AZN (£238)
Update (4.45pm), another 8 sentenced:
13. Subhi Hesenov 400,
14. Turgut Gambar 500 azn
15. Abil Huseynov 400 azn
16. Rail Abbasov 300 AZN
17. Turkel Azerturk 600 AZN
18. Ramin Hacili 450 AZN
19. Tezexan Mirelemli 500 AZN
20. Rauf Memmedov 300 AZN
21. Firuz Agayev-300 AZN
Gavin Phillipson is right to point out the failures in journalistic standards that led to damage to the reputation of Lord McAlpine. But he is wrong to extrapolate from this single case a misleading analysis of how the Libel Reform Campaign’s public interest defence would work in practice. Since the beginning of our campaign, claimant lawyers have raised the scenario of a senior figure smeared as a paedophile as rationale to defend the status quo. That the McAlpine scandal has happened right in the middle of the defamation bill passing through parliament gives us a good opportunity to say why the status quo actually does very little for those defamed.
This is a serious case. Lord McAlpine was not named by Newsnight, nor was he named by a single national newspaper or national broadcaster. However, the phenomenon known as “jigsaw identification” led to the unjust damage to McAlpine’s reputation. The public admonishment of poor journalism at the BBC, with an admission they got it wrong, has done more than anything to repair McAlpine’s reputation. Does anyone — with the exception of his lawyers — believe a cheque for damages will do more than this?
In fact, because our law is so unwieldy and costs 100 times the European average, it acts as a huge disincentive to sue. If Lord McAlpine were a primary school teacher or a nurse, it’s likely that the huge costs of taking on a defamation action (often a six figure sum, if not more, with no legal aid) would act as a deterrent, giving no redress whatsoever to repair reputation.
The Libel Reform Campaign has proposed a public interest defence that, as Phillipson pointed out, would give claimants the right for allegations to be “promptly clarified or corrected with adequate prominence”. If you’re a nurse, for the first time you get guaranteed redress.
Our defence also provides for reckless disregard for the truth of the allegation. If you publish a defamatory comment claiming that someone is a paedophile, without any knowledge of the underlying facts of the case (which would include social media users who named McAlpine), you are clearly displaying reckless disregard for the truth of that allegation. Under our proposals you would still be legally liable.
There is the bigger picture. The reason our clause has been tabled in parliament with cross-party support is that the status quo chills honest debate in the public interest. From the dumping of toxic waste by multinational corporations, rampant tax evasion by major corporations, the dangers from quack medicine, the exposure of international mafia gangs and the funding of terrorism – our current libel law’s lack of a serious public interest defence has chilled publication on all these issues.
Cardiologist and libel reform campaigner Dr Peter Wilmshurst was sued for pointing out possible problems with heart devices. Over the four years he fought his case, patients continued to have these devices implanted in their hearts. Some needed extensive surgery to have them removed because of the fault. This is why we propose our public interest defence. The status quo is totally ineffective and protects the rich but fails the poor – while allowing legal bullying to suppress information that will protect lives.
Over the last decade, from the banking crisis that caused our economy to implode, to the MPs expenses scandal that rocked the establishment, we can see that too little information has been exposed rather than too much. Our libel laws protect few. With support from over 60,000 people and over 100 civil society organisations, it’s time for a public interest defence in libel.
This post was originally published on Guardian Law.
“Laws are like sausages – it is best not to see them being made”; a phrase commonly attributed to Otto von Bismarck seems apt for attempts to reform our archaic libel laws. The last wholesale attempt to get libel law right was in 1843, making Robert Peel our last “libel reforming” prime minister. Depressingly, the sausage cliché is younger than much of the parliamentary law that dictates what we can and can’t say. It’s hard to overstate how chilling to free speech the current law is.
In 2010, President Obama signed into law the US Speech Act protecting Americans from libel judgements made in the high court here. John Whittingdale MP, the chair of the culture, media and sport select committee described this as a “national humiliation”. Our publication rule laughably predates the light bulb, originating in a case won by the notoriously litigious Duke of Brunswick in 1849. Thanks to this case, if you unknowingly copy a libellous statement and publish it on your blog, you could receive a threatening legal letter.
Thankfully, the government will be taking action on “libel tourism” and updating the publication rule for the internet age with the defamation bill that is currently passing through parliament. However, in some ways, the bill is a missed opportunity, with no new public interest defence and no action taken to stop corporations suing individuals.
Getting libel reform right means giving citizens a new public interest defence. Such a defence would have protected libel victims such as Dr Ben Goldacre, Simon Singh and cardiologist Dr Peter Wilmshurst – all of whom were dragged through the courts after writing on important matters of science. A strong public interest defence will protect NGOs and academics from libel actions when they speak out on the dumping of toxic waste by multinational corporations or rampant tax evasion by banks. This defence is crucial – it’s near-impossible for scientists to prove the absolute truth of their research in particular where there are constant breakthroughs in our knowledge.
It’s chilling to think that Wilmshurst was sued for pointing out possible problems with heart devices. In the four years he fought his case, patients continued to have these devices implanted in their hearts. Some then needed extensive surgery to have them removed because of the fault. If his concerns hadn’t been silenced by his four year libel case, doctors may not have recommended this treatment.
Public interest defence
A new public interest defence will also protect NGOs and citizen journalists who have got a minor fact wrong, but are willing to correct or clarify it. As it stands, with no new protections, the bill would not have helped many of the cases that spurred 60,000 people to sign the Libel Reform Campaign petition. It was the intention of the government to get this right. Justice minister Lord McNally told Singh at a packed Libel Reform Campaign meeting that he’d be reforming the law so that scientists couldn’t be dragged through the courts again. His hard work on this issue is being undermined by the lack of this defence.
The defamation bill will do little to stop corporations suing individuals. This may be for ideological reasons, but in a globalised world where big corporations increasingly dominate the public space, letting them sue individuals is manifestly unfair. Across parliament, Conservative MPs such as Peter Bottomley and David Davis, Liberal Democrats Tom Brake and Julian Huppert and Labour’s Rob Flello and Paul Farrelly have questioned whether large companies really do need to resort to suing citizens.
With PR teams and laws to stop anti-competitive practices, firms do have alternatives. The law of libel was never originally intended to cover non-natural persons. The law is there to compensate damage to an individual’s reputation and the psychological impact this has. But companies don’t have psychological integrity, ie feelings. Should they get damages for defamation?
A huge effort has gone into the Libel Reform Campaign so far. 60,000 supporters have lobbied their MPs in person, held pub meetings, events in parliament, roundtable discussions with lawyers and international human rights groups, a huge comedy gig in central London with help from 60 civil society organisations. On Wednesday comedians and friends of science Dara O’ Briain, Dave Gorman and Brian Cox will join us in parliament to lobby MPs. It’s not too late for the government to strengthen its defamation bill.
In the meantime, Guardian readers can email their MP to ask them to put pressure on ministers. Wholesale libel reform only comes around every 170 years – anyone who cares about free speech cannot afford to miss this opportunity.
I originally wrote this article for Guardian Law on Wednesday 27 June 2012.
The Local Government Association has gone into overdrive to question the Freedom of Information Act
During the slow news days of Christmas, spinners at the Local Government Association sent out a press release: “Councils quizzed on Santa, Napoleon and aliens in 2011′s most wacky FOIs.” With opportune timing, the story appeared in most national newspapers.
Perhaps just a bit of fun, it gave the impression that local authorities are being bombarded by frivolous or vexatious requests, with the Freedom of Information Act costing local authorities £31.7m a year. No matter that, according to the same evidence base used by the LGA, of 693,650 requests made to local government 98.4% were deemed straightforward by officers and not subject to internal review to weed out vexatious requests.
It’s striking that the LGA decided not to highlight how freedom of information has held town halls to account by exposing waste and maladministration. The Barnet bloggers showed how the council used an unlicensed security firm to covertly film residents. Perry Austin-Clarke, editor of the Bradford Telegraph & Argus, used FOI to discover the council was spending £500,000 on mobile phones bills. It subsequently fell to £100,000.
A series of FOI requests by the Daily Telegraph exposed how local authorities spent £2m on hotel bills over just 3 years – including stays at the Four Seasons in New York, the Pan Pacific in Singapore, and the Athens Hilton. The beauty of FOI is that it gives the public the same powers of inquiry as elected councillors.
Scrutiny can now be as powerful outside the town hall as inside.
This attention is not always appreciated by officers and members. Local government receives more FOI requests than any other part of government – because the services provided are the ones closest to the general public. In the Ministry of Justice’s memorandum to the justice select committee inquiry into the act, it argued: “At a time when all public authorities are required to do more with less, this consideration of the financial impact of FOIA on public authorities is pertinent.”
In Birmingham city council’s response to the committee, it argues that FOI costs the local authority £800,000. The figure is based on £25 an hour to locate, retrieve and review the information then (for no apparent reason) doubled the figure for staff costs. Until recently Birmingham was spending £10,000,000 a year on pushing its agenda through in-house publicity and communications.
The council argues that to reduce the cost of FOI, requests should be charged at £25 to deter multiple requests. Yet it’s multiple requests that allow groups such as the Taxpayers’ Alliance to make comparisons between local authorities – and find that councils such as Birmingham have the highest spending on publicity.
As John O’Connell, research director at the Taxpayers’ Alliance told me: “The Freedom of Information Act was one of the most important pieces of legislation enacted by the last government. FOI helped shift the power back to those who pay, and away from those who spend. It would be wrong to impose limits or caps on how much information taxpayers can request, and if public bodies wish to cut down on the work they do responding to FOI requests then they should simply publish more information proactively.”
Cost is a poor argument. While the LGA was happy to isolate the high costs of FOI, it pales into insignificance against the £427m a year claimed in mileage allowances for councillors and staff in 2009-10. The scrutiny that FOI brings to local government drives efficiencies.
It is certainly true that the number of FOI requests to local authorities has risen as people have become aware of their rights. Yet, research from University College London suggests that the cost of processing individual FOIs has also fallen by over half from £410 per request in 2005 to just £160 in 2010. FOI isn’t just the preserve of journalists or political parties: 52% of requests are from individual citizens, with 5% from businesses, journalists and political parties.
A concerted effort is underway to undermine the scope of FOI. It’s possible that requests could be charged in the future, severely hindering comparative investigative journalism. Another proposal is to lower the cost limit of £600 per request for central government departments and £450 for all other public authorities. This will only affect a tiny minority of FOI requests – but often the more pertinent.
A huge number of organisations (including Index on Censorship) are lining up to defend freedom of information. We’re hoping the justice select committee makes clear that the act is here to stay. But some policy makers have a desire to turn back the clock.
Jonathan Powell, Tony Blair’s chief of staff, regrets the introduction of freedom of information. “In retrospect, this was a mistake, not because secrecy is a virtue, but because policy making, like producing sausages, is not something that should be carried out in public,” he has said.
It’s a politics-first approach; hold debates behind closed doors so political groups can present a united front. In local government, this ignores the possibilities that opening up decision making to the public offers.
Local government must do more with less. In these circumstances opening up the decision-making process can only be a good thing. It’s a pity that the LGA is framing the debate in such a misleading way.
This article was originally published in the Guardian on 16 March.
Several local authorities are spending huge amounts of money on legally dubious grounds pursuing libel actions
In early February, Carmarthenshire county council confirmed that its chief executive Mark James will sue local blogger Jacqui Thompson for libel. The decision was made by the council’s executive board, and indemnifies James from the costs associated with the legal action.
The same local authority that is switching off 5,000 street lights as a result of cuts to its central government grant is pursuing a libel action that is likely to cost a six, maybe even seven, figure sum. The case is symptomatic of a wider trend where local authorities are becoming increasingly intolerant of local bloggers and using their legal, press and even security teams to hit out at vocal critics.
The Carmarthenshire dispute is long-running. It began with a libel action between Kerry and Jacqui Thompson from Llanwrda and the local authority’s director of planning Eifion Bowen, after the couple were sued for circulating defamatory letters, though they were never published in the wider media. The Thompsons apologised to Bowen at a hearing in October 2007, when they were given 12 months to pay legal costs totalling £7,000.
In 2008, the county council controversially changed its constitution so that public money could be used in future libel actions; an FOI request revealed its total legal costs from external organisations (solicitors and counsel) shot up from £364,369 to £711,832.
The legal authority for using public money for libel actions is questionable. The Derbyshire county council v Times Newspapers Ltd judgment of 1993 specifically rules out local authorities from suing for libel. As Lord Keith said in the judgment: “It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism”.
This ruling was derived in part from earlier case law, which asserts the fundamental importance in a democracy of citizens being able to express their views – even offensive or distressing views – about their government, at national or local level.
While elected members and officers can use local authority funds to defend themselves if sued for libel in the course of their duties under the 2004 Local Authorities (Indemnities for Members and Officers) parliamentary order, it specifically does not allow members to bring actions as claimants. And though Derbyshire specifically rules out local authorities and elected members suing for libel, it is less clear on councils funding libel actions brought by individual officers.
Wesley O’Brien, a solicitor at Bevan Brittan, pointed out in Local Government Lawyer magazine that local authorities can fund a claim brought by an individual officer and assist them if it can justify this expenditure. He said: “As the law currently stands, a local authority can fund a claim brought by an individual officer [council staff member] and it can also assist an officer in defending such a claim, where it considers such public expenditure to be justified.
“The position is, however, different for members where a local authority is only entitled to fund a defence, but not a claim … the only condition is that the statements made must refer to and be defamatory of the individual concerned.”
This isn’t the only case where taxpayer-funded local authorities are using their resources to take on vocal critics.
South Tyneside council, while making £35m worth of cuts in its 2010-11 budget, has admitted to Index on Censorship that it has used in excess of £75,000 worth of public money to launch a legal action by the council’s leader Iain Malcolm, fellow Labour councillor Ann Walsh and independent David Potts, alongside borough regeneration boss Rick O’Farrell.
Originally, South Tyneside told us that total case costs would not rise about £75,000, but the council has since admitted costs have rocketed into six figures. “The legal costs of this case have passed the £75,000 as a result of additional costs incurred to defend an ‘anti-Slapp’ motion … our American lawyers have advised that these costs total $64,370 and they have submitted a claim for this amount to the court in California. We are advised that the claim will be considered by the court at a hearing in February 2012,” it explained.
South Tyneside’s constitution requires cabinet sign-off for items over £75,000 – which of course creates a direct conflict of interest as Malcolm is a claimant in the case. However, the press office declares cabinet sign-off is not required.
As the case is being pursued in the Californian courts, it seems that the Derbyshire principle does not apply. But the council would find it hard to argue in the English courts that funding a case brought by an elected member did not breach either the Derbyshire principle, or the 2004 parliamentary order, leading to serious questions as to why the legal action has been taken.
These troubling recent cases, demonstrate the need to include a prohibition on all public bodies from suing for libel, as recommended by the Libel Reform Campaign, a coalition of Index on Censorship with English Pen and Sense About Science. The government is currently considering including the draft defamation bill in the next Queen’s speech, with thousands across the country writing to MPs to urge them to do so. If it does, ensuring that the resources of public bodies cannot be brought to bear against vocal opposition should be a serious priority.
Local authorities that open up access to information and learn from their critics will in the long-run build trust with their citizens. Councils that use public money to silence local voters are on a hiding to nothing – thanks to the Freedom of Information Act, we know what they’re spending, and how their decisions are being made. The old control impulse is strong, but it’s hard to justify to taxpayers in South Tyneside that their money is being thrown at lawyers in a Californian court so one councillor can sue another.
This article originally appeared in the Guardian on 14 February 2012.
Europe’s last dictatorship is clamping down on online activism, with a new law effectively requiring everyone to be a state spy
As of this morning, the internet in Belarus got smaller. A draconian new law is in force that allows the authorities to prosecute internet cafes if their users visit any foreign sites without being “monitored” by the owner. All commercial activity online by businesses registered in Belarus is now illegal unless conducted via a .by (Belarusian) domain name. There are concerns that this gives Belarusian authorities the power to take the next step and criminalise Amazon and eBay’s operations unless they collaborate with the regime’s censorship and register there. The law effectively implements the privatisation of state censorship: everyone is required to be a state spy. Belarusians who allow friends to use their internet connection at home will be responsible for the sites they visit. Some have tried to defend the law, stating all countries regulate the internet in some form – but the Belarusian banned list of websites contains all the leading opposition websites. The fine for visiting these sites is half a month’s wages for a single view.
The Arab spring has been a wake-up call to the world’s remaining despots. The internet allowed images of open dissent to disseminate instantly. As Ben Ali and Hosni Mubarak found out, once you reach a critical mass of public protest you haven’t got long to board your private jet. It’s a lesson learned by Alexander Lukashenko, the president of Belarus and Europe’s last dictator, and also by the Belarusian opposition.
Lukashenko attempted to destroy the political opposition after the rigged 2010 presidential elections. Seven of the nine presidential candidates were arrested alongside thousands of political activists. The will of those detained was tested: there are allegations that presidential candidates Andrei Sannikov and Mikalai Statkevich have been tortured while in prison. The opposition is yet to recover; many of its leading figures have fled to Lithuania and Poland.
Within this vacuum of leadership, the internet helped spur a civil society backlash. After the sentencing of the presidential candidates, a movement inspired by the Arab spring “The Revolution Via Social Networks” mushroomed into a wave of protests that brought dissent to towns across Belarus usually loyal to Lukashenko. As the penal code had already criminalised spontaneous political protest with its requirements for pre-notification, the demonstrations were silent, with no slogans, no banners, no flags, no shouting, no swearing – just clapping.
“The Revolution Via Social Networks” (RSN) helped co-ordinate these protests online via VKontakte (the biggest rival to Facebook in Russia and Belarus with more than 135 million registered users). RSN now has more than 32,000 supporters.
RSN splits its four administrators between Minsk and Krakow to keep the page active even when the state blocks access to the page, or the country’s secret police (hauntingly still called the KGB) intimidate them.
The protests were so effective at associating clapping with dissent that the traditional 3 July independence day military parade was held without applause with only the brass bands of the military puncturing the silence. As lines of soldiers, trucks, tanks and special forces paraded past Lukashenko and his six-year-old son dressed in military uniform, those gathered waved flags in a crowd packed with plain-clothed agents ready to arrest anyone who dared clap or boo.
The internet has kept the pressure on the regime in other ways. Protesters photograph the KGB and post their pictures online in readiness for future trials against those who commit human rights violations. A Facebook group “Wanted criminals in civilian clothes”, blogs and Posobniki.com all help to expose those complicit in the regime’s crimes. The web has also helped spread the stories of individuals who have faced brutality by the regime.
It’s this effectiveness that has made the internet a target for Lukashenko. The law enacted in July 2010 allowed the government to force Belarusian ISPs to block sites within 24 hours.
The new measures coming into force today merely build upon these restrictions. The official position of the Belarusian government from the operations and analysis centre of the presidential administration is: “The access of citizens to internet resources, including foreign ones, is not restricted in Belarus.” Yet, in reality the government blocks websites at will, especially during protests. Just after Christmas, the leading opposition website Charter 97 (which works closely with Index on Censorship) was hacked, its archive part-deleted and a defamatory post about jailed presidential candidate Andrei Sannikov published on the site. The site’s editor, Natalia Radzina, who has faced years of vile death and rape threats and escaped from Belarus after being placed in internal exile last year, says she has “no doubt” that the government was behind the hack. This is one of a series of attacks on Charter 97, which include co-ordinated DDOS (denial of service) attacks orchestrated by the KGB through an illegal botnet of up to 35,000 infected computers worldwide.
The regime has even darker methods of silencing its critics. In September 2010, I flew to Minsk to meet Belarusian civil society activists including the founder of the Charter 97 website, Oleg Bebenin. The day I landed he was found hung in his dacha, his leg broken, with his beloved son’s hammock wrapped around his neck. I spoke to his closest friends at his funeral including Andrei Sannikov and Natalia Radzina. No one believed he had committed suicide, all thought he had been killed by the state. Bebenin isn’t the only opposition figure to have died or disappeared in mysterious circumstances under Lukashenko’s rule, a chill on freedom of expression far more powerful than any changes in the law.
Today marks yet another low in Belarus’s miserable slide back to its Soviet past. Clapping in the street is now illegal. NGOs have been forced underground and their work criminalised.
Former presidential candidates languish in jail. The internet is the last free public space.
Lukashenko will do all he can to close down this freedom. In Europe, the battle has opened between the netizens of Belarus and its government. Who wins will be a matter of interest for us all.
This article was originally published in the Guardian on 6 January.
This article originally appeared on Left Foot Forward
A rather traditional battle between a tabloid newspaper and a rich individual seems to be concluded (unless, of course, it goes to appeal). Max Mosley, son of fascist Oswald Mosley, and the former head of Formula 1, wanted to force newspapers to give prior notification when they could be in breach of an individual’s right to privacy.
He is no stranger to arguments about free speech. In 1961, he campaigned for “Free speech for fascists”, when his father’s invitation to speak at the Oxford Union was opposed.
Mosley launched his current case after the News of the World published allegations that he cavorted with five prostitutes in a basement flat in London in a Nazi-themed orgy. Mosley’s assertion that the UK government breached his human rights by not insisting that newspapers gave prior notification before publication was rejected by the European Court of Human Rights.
It is undoubtedly a success for press freedom and one backed by Index on Censorship who made a submission to the Court.
Prior notification would be disastrous for investigative reporting – by national newspapers or NGOs. It would lead to a situation where a local newspaper wanting to publish a fact-checked story on councillors embezzling public funds would have to tell the offenders before the story is published.
Immediately the councillors would take out an injunction and no local paper would have the £60,000-£100,000 that media lawyers estimate it costs to overturn such an injunction. The story would be buried – and voters none the wiser.
This rule isn’t just about the press: human rights NGOs would be affected too. Human rights NGO Global Witness indicated that if Mosley’s rule was brought in, they would not be able to publish on topics such as blood diamonds, and notification would put their staff and sources in danger. And European Court judgements aren’t just about the UK – oligarchs in the Russia and the Ukraine could use this tool to muzzle the little independent media left in these countries.
It is worth pointing out what the judgement did and didn’t say.
Trevor Kavanagh of The Sun has spun it as:
“You don’t need to be a tabloid journalist to celebrate orgy-loving Max Mosley’s crushing defeat by the European Courts.”
But this isn’t an unmitigated triumph for free speech. Mosley won his case against the News of the World for breach of his Article 8 right to privacy and received record damages of £60,000. The European Court did not find these damages excessive stating:
“…no sum of money awarded after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant.” 
The Court also made a clear distinction between the ‘public interest’ which would merit a defence under Article 10 of the ECHR (the right to free expression) and ‘lurid news’ (including tabloid gossip) which would not be protected under this defence:
“…reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life…
“In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life…
“Such reporting does not attract the robust protection of Article 10 afforded to the press.” 
The Court did, however, rule out pre-notification. It argued that:
“…any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification” 
And if set at a ‘punitively high level’ these fines would in effect be incompatible with the Article 10 right to freedom of expression. Looking at this and the wider public interest, the Court concluded that an individual’s Article 8 rights are not violated by the absence of a requirement on the media to notify the individual in question prior to publication.
This does not mean that newspapers who do publish stories that violate an individual’s privacy can get away with it. Huge damages are here to stay. But the long-established custom of “Publish and be damned!” is intact, and as such the British media will collectively breathe a sigh of relief. The British government will be pleased too, as the Court’s emphasis on the “margin of appreciation” (the legal space for national law within the ECHR) means they won’t be set for a damaging battle with “foreign judges” (in the technical language of our august media).
Hugh Tomlinson QC of Matrix Chambers says on the Inforrm blog:
“The press won the battle but the judgment confirms that it has lost the ‘privacy war’. The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved.”
This judgement comes as our privacy law comes under increasing scrutiny. The Daily Telegraph reported yesterday that there have been more than two million tweets breaching various ‘super-injunctions’. A twitter account (which you can easily Google and find – but would land Left Foot Forward in Court if mentioned here) published details of the use of six such injunctions.
Former Lord Chancellor Charlie Falconer said:
“If a point is reached as a matter of evidence when everyone knows who the injunctions are about then they become pretty pointless… It is concerning that people can do this and break the law. It sounds like it’s very difficult to make sure that injunctions like this are complied with.”
Tory MP Claire Perry, never knowingly in defence of free expression, added:
“This is making a mockery of the existing law and we need to make sure thatthe law catches up with the technology.”
In one aspect, I agree with Max Mosley who said, on last night’s Newsnight, that there is little difference between a pub conversation and the stream of consciousness that Twitter represents. But for politicians the anarchic atmosphere of the internet presents a threat. There is little doubt that curbs on internet freedom are in the pipeline, whether Ed Vaizey’s threatening noises on copyright infringement, or perhaps as touted yesterday by Tory MP Zac Goldsmith, a Privacy Bill.
Net freedom will come under attack. Press freedom is now curtailed due to Strasbourg jurisprudence on privacy. What’s complex is the debate over individual privacy is not clear cut. Whilst many people would argue that Max Mosley’s private peccadillos are his own personal business, and his alone, few would wish to see those breaking super-injunctions via Twitter found in contempt of Court and jailed. As the European Court found, effective sanctions that uphold privacy may be in breach of the fundamental right to freedom of expression.
Rights are often balanced – the very difficult question for Parliament is how to balance free expression and personal privacy.