Our CEO Ruth Anderson reflects on the events of the past 12 months, yet another year of challenges to human rights around the world
Irene Khan
UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, by email.
CC – Dr. Ana Brian Nougrères, UN Special Rapporteur on the right to privacy, by email.
15.11.22
Re: Concerning developments for human rights online in the UK
Dear Ms Khan,
We are writing to you regarding the UK Government’s Online Safety Bill; legislation which we believe will fundamentally undermine the rights to freedom of expression, privacy and other human rights online in the UK.
We note that in March 2022 you wrote to the UK Government expressing concerns about this Bill (OL GBR 5/2022). In your correspondence you stated:
“I believe the proposed Bill, as currently drafted, contains some key provisions that could undermine its overall objective as well as international human rights principles.”
Regrettably, since this correspondence, the legislation has in no way been materially improved to protect human rights. This is despite the fact that it has now been laid before Parliament and has been subjected to considerable revisions. We therefore urge you to use your mandates to provide recommendations to the UK Government to amend the following concerning aspects of the Bill:
The Bill will lead to the restriction of speech considered “legal but harmful”.
We are particularly concerned over the provisions of the Bill which will place pressure on the largest platforms to restrict content the government has designated to be “harmful” (clause 13). In your correspondence to the UK Government of 14 March 2022 you said of this obligation:
“The duty of care placed upon online providers to protect users of their services against legal but harmful content uses vague terms that are open to broad interpretation, such as “reasonably identify”, “material risk”, “significant adverse physical or psychological impact”, “ordinary sensibilities”, and so risks undue removal of content.”
Despite further revisions to the legislation, the Bill continues to place an obligation on online intermediaries to address content which is “legal but harmful”. Where speech of this nature was given a definition in the draft Bill, no such definition exists in the full Bill. An indicative list of possible categories of harmful content was issued by the government in June this year.1 However, this list is not legally binding and cannot be considered sufficiently precise to meet the legality requirement under international human rights standards. Rather, the power to designate speech which is “legal but harmful” lies within the power of the Secretary of State, which creates scope for political censorship and seriousl compromises the independence of the regulatory framework.
As you noted in your letter, the Bill provides little detail of the obligations regarding harmful content and providers could be required to make subjective assessments of its potential impact. Consequentially, forms of speech which are permitted in the offline world and are protected under international human rights law would be censored online, creating two different standards of permissible speech.
The Bill will mean online platforms, not courts, enforcing UK law
In your letter to the UK Government of 14 March 2022, you noted your concerns about the obligations the Online Safety Bill places on platforms to perform functions – namely the duty to remove illegal content – which should be the preserve of law enforcement bodies and independent courts. You stated:
“I am concerned that this obligation delegates to private companies a responsibility that should be exercised by law enforcement, particularly for offences where the boundary between offensive but legal and illegal conduct may be difficult to discern, such as hate crime.”
The Bill continues to require online platforms to determine whether the speech of people in the UK is legal or not and then remove it if they believe it is illegal, undermining the rule of law (clause 9). Online platforms will inevitably turn to machines, not trained people, which are unable to make such nuanced and difficult legal assessments. As a further development of this obligation, platforms will now have a duty under clause 9 of the Bill to “prevent” content (and not only limit its visibility as required under the draft Bill) that they “reasonably consider” could be what the Government describe as “priority illegal content”. Such priority content is defined in Schedules 5,6, and 7 of the Bill, as a list of criminal offences. The list includes provisions from public order and anti-terror legislation which would set the legal limits of legitimate expression. We are concerned that the new language in clause 9 could push platforms to use “upload filters” and risks collateral censorship on a large scale.
Private actors should not be tasked with making such decisions over the legality of people’s behaviour. This is the role of transparent, independent and accountable public authorities such as courts. However, the Bill does nothing to ensure that the police and courts are properly resourced to prosecute, convict, and sentence those who break the law online, depriving victims of justice.
The Bill compromises end-to-end encryption of private messages
In your letter of 14 March, you noted the importance of the right to privacy as a right which also reinforces protection of the right to freedom of expression. You stated:
“I am concerned that the inclusion of direct private messaging within the scope of the Bill could impact negatively on encryption, security and privacy. I have similar concerns regarding Ofcom’s ability to compel a service to use technology to detect child sexual exploitation and abuse (CSEA) and terrorism content on private and public channels and CSEA content on private communication channels”.
The latest version of the Bill continues to bring encrypted chat services into scope via a definition of content as anything that is “communicated publicly or privately”. The obligations on services mandated by the Bill could be imposed on providers of encrypted messaging services via an enforcement power handed to the regulator, Ofcom, without any further judicial or administrative oversight. This would allow Ofcom to mandate that a service use government-“accredited technology” to surveil private channels, even if they are protected by end-to-end encryption (clause 104).
Encryption tools have become vital for individuals to communicate securely. This is particularly true for human rights defenders, journalists, whistleblowers, victims of domestic abuse or individuals from marginalised groups. Undermining these individuals’ ability to communicate privately and securely would threaten both their safety and their right to freedom of expression.
Your other concerns regarding a media exemption; the lack of any quality standards required for the internal complaints mechanisms; the scale of fines that could be imposed on providers; the inadequate requirement on providers to “have regard” to freedom of expression; and the excessive powers granted by the Bill to the Secretary of State; have also not been addressed.
We believe an intervention from you on the legislation would be timely. The Bill has nearly completed its passage through the House of Commons and will soon enter the House of Lords for further consideration. However, in recent weeks, the Bill has been paused for further review.
We urge you to issue a statement or communicate your concerns with the Government, recalling their long-standing obligations in international and domestic law, and their recent pledges to defend freedom of expression in the UK and abroad.
Yours sincerely,
Mark Johnson – Big Brother Watch
Barbora Bukovská – ARTICLE 19
Sam Grant – Liberty
Dr Monica Horten – Open Rights Group
Daniel Pryor – Adam Smith Institute
Ruth Smeeth – Index on Censorship
Sanaa Seif, the sister of Egyptian writer and activist Alaa abd el-Fattah, speaking at COP27
It shouldn’t surprise anyone reading this that I care passionately about freedom of expression. I have dedicated my life to political engagement and campaigning and have used every right afforded to me under article 10 of the Human Rights Act as I have sought to fix problems in our society.
At Index I spend every day seeking to ensure that those people who are silenced by despotic regimes have a platform for their words and their art. I speak to journalists and stakeholders daily about threats to freedom of speech at home and abroad. After all, Index was founded to protect this most fundamental of human rights everywhere it is threatened.
But there are some weeks when even I am surprised by the scale of news coverage of freedom of speech. Especially in the UK. It increasingly feels like the phrase freedom of speech is dominating political debate as well as the comment pages in our mainstream media. Of course I welcome every mention and the truth, in an age of disinformation, trolling and political populism, is that we need a national conversation about how language, speech and debate need to be protected and cherished as our communication tools evolve and develop.
But in the last week I’m not sure that’s what we’ve seen. I want a debate about freedom of speech and expression. About how to protect and promote media, artistic and academic freedoms. Instead what we have seen is journalists arrested, in the UK, for doing their job and covering the news. We’ve seen an elected politician denounce media outlets for having the audacity to cover protests.
On the international stage we’ve seen a social media platform used by millions of people change dramatically on the whim of a billionaire within a matter of days of his taking ownership. World leaders attending COP27 in Egypt failing in all efforts to intervene in the case of Alaa Abd el-Fattah, a democracy campaigner, imprisoned because he dared to support a political protest. And in the US we’ve once again seen too many politicians undermining the very basis of their democracy as a political tool.
We deserve so much better than this.
We deserve more than political rhetoric about free speech while populists seek to hijack their own definition of free speech for political gain.
We deserve more than token diplomatic gestures when people are rotting in prison for having the audacity to demand their basic human rights.
We deserve more than our police forces arresting journalists and undermining media freedom because they seek to cover the news.
We deserve better. And Index will keep demanding better – at home and abroad.
The winners of Index on Censorship’s 2022 Freedom of Expression awards have been announced at a ceremony in London hosted by broadcaster, journalist and commentator Ayesha Hazarika.
The awards, now in their twenty-second year, celebrate those who risk arrest, assault and imprisonment through their championing of freedom of expression. This year’s panel of judges consists of multi-award-winning artist Alison Jackson, artist and writer Coco Fusco, journalist Ben Preston, and Chair of the Index Board of Trustees Sir Trevor Phillips.
Awards were presented in three categories: the arts, campaigning, and journalism, alongside the annual Trustees Award. The winners were:
The 2022 Trustees Award – Andrey Kurkov
Andrey Kurkov is a writer, journalist, and the current president of PEN Ukraine. Born in St Petersburg in 1961, he graduated from the Kiev Foreign Languages Institute, worked as a journalist and did military service as a prison warder in Odessa. He became a writer, producing screenplays and authoring critically acclaimed and popular novels, including Death and the Penguin. Kurkov is a hugely respected commentator on Ukraine, and his most recently translated novel, Grey Bees, explores the current conflict through adventures of a beekeeper.
The 2022 Freedom of Expression Award for Journalism – Sophia Huang Xueqin
Huang Xueqin is an activist and journalist who has worked with several domestic Chinese media outlets. She has reported extensively on the MeToo movement in China. Huang has worked to promote women’s rights, and to document and expose sexual harassment against women and girls. She has faced legal challenges because of her work and was detained between October 2019 and January 2020 after writing about mass protests in Hong Kong.
On 19 September 2021, Huang disappeared. It has since been confirmed that she had been detained along with labour activist Wang Jianbing and charged with “inciting subversion of state power”. She remains in detention and is now held in the No. 1 Detention Centre in Guangzhou.
The 2022 Freedom of Expression Award for Arts – Hamlet Lavastida
Hamlet Lavastida has been described as a political activist by way of art, using his art to document human rights abuses in Cuba and to criticise Cuban authorities. Lavastida has been involved in various protest movements in Cuba, including the 27N movement which grew out of the protests held on 27 November 2020.
In June 2021, Lavastida was arrested after returning from a residency at the Künstlerhaus Bethanien in Berlin. Following his arrest, Amnesty International named him as a ‘prisoner of conscience’. Lavastida stayed in prison for 87 days. Lavastida has been living in exile in Europe since September 2021, warned that he will be arrested immediately should he ever return to Cuba.
The 2022 Freedom of Expression Award for Campaigning – OVD-Info
OVD-Info is an independent human rights media project documenting political persecution in Russia. They collect information about detentions at public rallies and other cases of political pressure, publish news and coordinate legal assistance to assist detainees. The organisation was set up in 2011 to document arrests during the widespread anti-fraud protests, the organisation has now evolved to offer legal guidance and support to people arrested at peaceful protests in Russia.
In September 2021, OVD-Info was labelled as a ‘foreign agent’ by Russian authorities. During the ongoing war in Ukraine and associated anti-war protests in Russia, OVD-Info’s work is more important than ever. Despite a highly unpredictable situation and persistent censorship, OVD-Info continues to support detained and persecuted protesters in Russia.
Ruth Smeeth, Index on Censorship CEO said: “Index on Censorship’s Freedom of Expression awards celebrate the bravery and brilliance of journalists, artists and campaigners from across the globe. Each and every winner is a beacon for free expression, standing up for their democratic rights and values in the face of often unimaginable personal peril. The quiet heroism of our winners gives us all reason to redouble our work to defend free speech and free expression around the globe, give voice to the persecuted, and stand against repression wherever we find it”.
Watch the acceptance videos of the 2022 winners here.
NOTES TO EDITORS
For all media enquiries contact Luke Holland / [email protected] / +447447 008098