The ease with which the police closed down the activist site is worrying, says Val Swain

On Monday 15 November activist anti-police surveillance website Fitwatch disappeared from the web. The Metropolitan police alleged that the site had been used for “criminal activities” and made a formal request to the US based web-hosting company JustHost to take the site down. Without further argument, the web host promptly complied.

At no stage has any of this gone in front of court. The decision to take the website down was taken entirely by the police, with the agreement of the hosting company, which seems to have put up little argument. The ease by which the police can shut down any website they don’t like the look of doesn’t sit well with our supposed freedom of speech.

The Metropolitan police, especially the Public Order Unit (CO11) of the Metropolitan police, has reason not to like Fitwatch. Fitwatch was set up three years ago to monitor the behaviour of police Forward Intelligence Teams (FIT), specialist police units run by CO11 that photograph, film and gather “intelligence” on political protesters. Fitwatch has been a thorn in their side ever since. Its campaigning has forced changes to their operational procedures and exposed in the press the routine collection and retention by police of protesters personal details — information the police would rather have kept to themselves.

Fitwatch had also been supportive of student actions in occupying Tory headquarters Millbank last week. In the midst of a witch-hunting frenzy by the right wing press, including the Telegraph’s rogues gallery of “rioting” students, Fitwatch had urged protesters not to panic into handing themselves in. It also suggested other tactics that may help get students out of trouble — including getting rid of “dodgy” items such as clothes and distinctive jewellery worn on the day.

The Met’s Public Order Unit then contacted the web host and alleged that the site had been used to give “explicit advice” to “offenders” that amounted to an attempt to pervert the course of justice. They made no attempt to contact the website’s authors, nor did they ask the host to remove the offending article. They requested that the domain being used should be suspended for a minimum of twelve months.

If the aim of this draconian decision was to stop people reading this “explicit advice”, the Met has failed spectacularly. The strength of the web is that it continues to resist attempts to control it. In response to police censorship the internet community sprang into supportive action. Dozens of other sites and blogs instantly uploaded the offending page onto theirs, as links multiplied. The material the police wanted to repress has surfaced to reach thousands more than it would have done if the police had left it alone — especially after it got coverage in the Guardian.

If the aim was a more general one, to disrupt and deter “anti-police” websites, this also seems to have backfired. If anything, the action has only exposed the depth of support for the sentiments Fitwatch expressed. Fitwatch is resolutely undeterred, and is working on getting the website up and running again, albeit on a different domain.

The effect on freedom of expression may not be immediately apparent. While Fitwatch may dig its heels in, others will start to worry about the wisdom of publishing contentious information. And while dozens may rally round to resist police censorship, dozens more may become that little bit more cautious about what they post. Nobody wants to have their website taken down, or be accused of criminal activity. If we value freedom of expression, we should not tolerate the police deciding what websites we should, or shouldn’t be allowed to read.

Val Swain is a FITwatch activist

The legal opinion

• Article 10 of the European Convention of Human Rights (our equivalent of the US 1st Amendment) provides the right to freedom of expression, subject to certain restrictions described in Article 10(2). However, any state interference must be “in accordance with law” and “necessary in a democratic society”… “for the prevention of disorder or crime”.

• This fundamental right includes the freedom to hold opinions, and to receive and impart information and ideas even if those are unpopular with the police. Whilst some of the comments in this particular Fitwatch posting might potentially have been classed as obstructing a police investigation (which comes under the common law criminal offence of ‘perverting the course of justice’), under the Human Rights Act 1998 the police, as a public body, may only interfere with freedom of speech so far as is necessary and proportionate to the aim being pursued. Asking the host to remove the whole website (rather than the offending post) for an entire year would potentially amount to an unlawful, disproportionate interference with the Article 10 right.

• One can think of countless examples of sites where information is given on how to engage in legally dubious conduct but avoid being convicted of a crime – eg. pro-fox hunting sites, hunt saboteur sites, S&M legal advice sites etc. Are the police to shut down all such sites? Given the speed at which new sites are generated, it would be futile, whatever about being potentially amenable to challenge by judicial review. The police would be wise to follow the recommendations of the Joint Committee on Human Rights 2009 report “Demonstrating Respect for Rights? – Follow Up” published post-G20. They said: “Human rights based policing should help to improve public trust in the police.” Attempts at censorship seem to be no more than a knee-jerk reaction, which may ultimately dissuade the peaceful majority of student protesters from assisting the police.

Gwendolen Morgan is a solicitor in public law and human rights at Bindmans LLP