4 May 2022 | News and features, United Kingdom
The Online Safety Bill has simple, laudable aims – to make the online sphere more safe. But despite almost seven years of debate, thousands of hours of Parliamentary scrutiny, analysis from civil society, business and the media, there is still significant uncertainty about how the Bill will work in practice. The Government is still not able to define terms at the heart of the legislation such as “legal but harmful” or give the as many as 180,000 technology companies big and small who will implement this new legal framework clear guidance on how this landmark legislation should operate.
To fill this gap and help explain what the Bill will mean in practice, the Legal to Say Legal to Type campaign has instructed media law expert Gavin Millar QC of Matrix Chambers to produce the first analysis of the implications of the Online Safety Bill on UK citizens’ freedom of speech.
The QC’s opinion explains and analyses the broad implications of the Government’s new online safety regime against current freedom of expression laws and found that the Bill will significantly curtail freedom of expression in a way that has profound consequences for the British media and journalism, courts and the UK’s digital economy. The Bill gives the Secretary of State overseeing the legislation unprecedented powers to curtail freedom of expression with limited parliamentary scrutiny.
The Bill, which received a second reading in Parliament on 19 April, does not comply with Article 10 of the European Convention on Human Rights, and far from the claim of the Culture Secretary that the Bill will protect free speech it actively undermines existing legal protections in an unprecedented manner. This new analysis shows how the Online Safety Bill as currently drafted ends the historic principle in law that people can publish what they like, unless the state specifically and clearly passes laws to the contrary.
This report is not a comprehensive dissection of the flaws in the Bill which are too vast to deal with succinctly. For example, the UK Independent Reviewer of Terrorism Legislation, Jonathan Hall QC has recently publicly criticised the Bill as being “ineffective on terrorism”. The chief criticism he lays is that “the Bill defines ‘terrorism content’ by reference to terrorism legislation, but ignores intention and defences. This leads to some very odd outcomes. It’s hard to see how it provides a workable framework for regulation.”
The ambiguity of the drafting and the lack of governmental consideration on the Bill’s intersection with existing linked areas of law is indeed staggering. The idea that speech can be lawfully moderated without properly adjudicating on an individual’s intention and the context of the speech is nonsensical – irrespective of whether your concern is terrorism, crime or freedom of expression.
Index on Censorship believes that the consequences of the Bill (intended and unintended) go beyond what has been considered in Parliament to date, for example:
- The Bill violates freedom of speech as defined in UK and international law.
- Protections for media content are not as wide as existing human rights for journalists
- Pro-active state-enforced censorship by algorithm has questionable legality.
- New powers for platforms such as Meta, Twitter, and even companies like Apple, will mean they may be performing functions of a public nature under the “Duty of Care” and could be subject to judicial review.
- The Secretary of State for Digital, Culture, Media and Sport will have an unparalleled ability to censor.
- The proposal to proactively monitor private communications lack safeguards for journalistic or legally privileged material.
The Government has ended up in this position having disregarded all the learnings from regulation of the online space over the last twenty years, including some of the fundamental building blocks of the internet namely intermediate liability protections. This is despite pre-legislative scrutiny identifying flaws in the draft Bill.
In summary, the legal advice, published in full in this report, found:
- The regime proposed by the Bill does not contain the statutory safeguards that would be required to prevent or limit the risk of violations of the right to freedom of expression.
- The structure of regulation offers no prospect of ‘fact-specific’ adjudications on speech.
- Harmful speech has no legal basis and risks restrictions on speech that are too broad and therefore open to abuse through selective enforcement.
- On the face of the Bill there appears to be a risk that platforms, and possibly Ofcom, may access confidential journalistic material in carrying out their statutory functions.
- ‘Democratic importance’ protections are not as wide as existing human rights protections as they only cover a limited form of political expression.
The report is available to read in full below or to download here.
25 Feb 2022 | Belarus, Opinion, Russia, Ruth's blog, Ukraine
Graffiti of Vladimir Putin. Photo: Don Fontijn/Unsplash
I have struggled to write this blog. There don’t seem to the right words for something so serious, so terrifying but so utterly predictable.
Putin has invaded Ukraine – again.
As I write there are Russian bombs falling across Ukraine. Innocent people are dying, families are sheltering from bombing raids in the underground and people are fleeing.
This act of war, from a tyrant, cannot be explained or excused. This is an effort to destabilise Europe. To re-build a Russian Empire. To secure Putin’s legacy. It is not about NATO expansionism or a security threat from Ukraine. This is all Putin. This is not about the Russian or Ukrainian people.
Putin has brought war and death to mainland Europe and the world is more unstable than at any time since the Cuban Missile Crisis. That is our shared reality in 2022. This is the consequence of allowing a dictator to operate unchecked as readers of our work at Index know only too well.
Index does not exist to pontificate about international relations and defence policy – as frustrated as we may be. Our role, always, is to provide a space and a voice for dissidents and those being persecuted. But, and it’s a big but, we were founded in the midst of the Cold War half a century ago – to promote and protect the liberal democratic value of free expression. To work behind the Iron Curtain to provide a platform for the work and personal reflections of dissidents. We did this because we believe in democracy. That the foundations of free expression are protected at the ballot box. That the ultimate expression of freedom is the right to self-determination and to peace in a free society.
The invasion of Ukraine brings to the fore the reasons why Index exists. Even in the early hours and days of this aggression we have seen misinformation used as a propaganda tool. Journalists in Russia have been instructed to only use official comment on events in Ukraine. Protesters against the war in Moscow are being arrested in the dozens. And DDoS attacks on Ukrainian cyber infrastructure is becoming the norm. Putin is seeking to control every form of communication – that is not free speech.
In the months and years ahead Index will continue to provide a platform for dissidents. We will tell the stories of those writers, artists and academics who are being silenced by Putin’s regime. We will do what we do best – be a voice for the persecuted.
But as scared as I am of events in Eastern Europe – I worry about censorship through noise (as so ably articulated by Umberto Eco) that we are about to live through. Every repressive government could move against their citizens in the coming months with little global condemnation as our world leaders seek to find peace and secure the world as we know it. As we have for over half a century Index will be a home for those dissidents too – wherever they live – highlighting their stories and publishing their work.
The months ahead are going to be awful for too many people. Tyrants will believe they have a free hand to move against their citizens. Europe faces more war and the Chinese Communist Party may well seek to manipulate events to suit themselves.
In this unstable world the work of Index has never been more vital and we will do everything we can to support those who need us most.
15 Nov 2021 | China, Hong Kong, News and features
A former food delivery worker calling himself a “second-generation Captain America” and who would turn up at protests in Hong Kong with the Marvel superhero’s instantly recognisable shield has been convicted for violating the country’s national security law (NSL).
On 11 November, Adam Ma Chun-man was sentenced to five years and nine months for inciting secession by chanting pro-independence slogans in public places between August and November 2020.
Evidence cited by a government prosecutor in the court case against Ma included calls for independence he had made in interviews.
Ma becomes the second person to be found guilty under the law imposed by Beijing in July last year. He has lodged an appeal against the verdict.
The first person sentenced under the NSL was former waiter Tong Ying-kit who was jailed in late July for nine years for terrorist activities and inciting secession. Tong was accused of driving his motorcycle into three riot police on 1 July 2020 while carrying a flag with the protest slogan “Liberate Hong Kong. Revolution of our times.”
The watershed ruling on Tong has profound implications for freedom of expression and judicial independence in Hong Kong.
The “Captain America” case has further fuelled fears about the rapid erosion of the city’s room for freedom and the strength of the court in upholding civil liberties.
Like the Tong case, the Ma judgement has significant implications for related cases but the ruling has attracted far less attention. The general public reacted with indifference mixed with a feeling of futility and helplessness. It does not bode well for civil rights and liberties in the city.
The significance of the Ma case lies with the judge’s ruling on what constituted incitement.
Ma’s lawyer said Ma had no intention whatsoever of committing a crime, but was just expressing his views. Merely chanting slogans should not be deemed as a violation of the NSL, the lawyer argued. That he urged people to discuss the issue of independence in schools did not necessarily mean the result of the discussions would be a yes to independence. It could be a no.
Importantly, his lawyer argued Ma had merely expressed his personal views without giving thought of how to make it happen through an action plan. Referring to Ma’s slogan “Hong Kong people building an army”, his lawyer said it was just an empty slogan, again, without a plan.
In sentencing, judge Stanley Chan described the case as serious. He rejected the argument by Ma’s lawyer that the level of incitement in his speeches was minimal, saying Ma could turn more people into the next Ma Chun-man.
Put simply, judge Chan said that although the actual impact of Ma’s speeches in inciting others has been minimal, this was insignificant when determining whether his act constituted incitement.
This view is markedly different from the reaction of the media and the public over Ma’s political antics.
Ma had drawn the attention of journalists when he turned up in protests for obvious reasons. But no more. The lone protester neither had a sizable group of followers nor electrified the sentiments of the crowd at the scene.
The heavy sentencing of Ma will worsen the chilling effect of the national security law on freedom of expression. Importantly, it will have serious implications for a list of incitement cases currently in the process of trial.
In a statement on the sentencing, Kyle Ward, Amnesty International’s deputy secretary general said: “In the warped political landscape of post-national security law Hong Kong, peacefully expressing a political stance and trying to get support from others is interpreted as ‘inciting subversion’ and punishable by years in jail.”
With no sign of an easing of the enforcement of the law 16 months after it took effect, the international human rights group decided to shut down its local and regional offices in the city by the end of the year. They said the Beijing-imposed law made it “effectively impossible” to do its work without fear of “serious reprisals” from the Government.
Hong Kong chief executive Carrie Lam responded by saying no organisation should be worried about the national security law if they are operating legally in Hong Kong, adding Hong Kong residents’ freedoms, including that of speech, association and assembly were guaranteed under Article 27 of the Basic Law, the city’s mini-constitution.
To a lot of Hongkongers, the assurance, which is an integral part of the former British colony’s “one country, two systems” policy, is an empty promise.
The power of the national security law in curtailing freedoms in other aspects of everyday life in Hong Kong has been widely felt.
In October, the legislature rubber-stamped an amendment to the film censorship ordinance, giving powers to the authorities to ban films that are considered as “contrary to the interests of national security.” The phrase, or “red line” in the law, is much broader than the original version, which targeted anything that might “endanger national security.”
Even before the bill was passed, a number of films and documentary films relating to the 2019 protest were not allowed to be shown in public locally. They include the award-winning Inside the Red Brick Wall and Revolution of Our Times, a nominee in the 2021 Taiwan Golden Horse Film Award.
Moves to revive political censorship in film are part of the authorities’ intensified campaign against threats to national security. While targeting political activists, the net has been widened to curb what officials described as “soft confrontation” and “penetration” through films, art and culture and books.
The University of Hong Kong has called for the Pillar of Shame, a sculpture by Danish artist Jens Galschiot, to be removed from the campus, citing concern over the national security law.
On the legislative front, security minister Chris Tang has given clear reminders that more needs to be done to protect national security, pointing to crimes in Basic Law Article 23 that have not been covered in the national security law.
He has vowed to target spying activities and to plug loopholes following the social unrest in 2019. Tang cited the example that helmets and free MTR tickets were distributed free to protesters during the protests, claiming there were state-level organising behaviours, potentially by actors from outside the country.
Both the central and Hong Kong authorities have labelled the movement as a “colour revolution” with hostile foreign forces behind it, without giving concrete evidence.
In addition to spying, a bill on Article 23 will also cover theft of state secrets and links with foreign organisations. Officials gave no timetable. But it is expected to be at the top of the agenda for the new legislature, which is due to be formed after an election is held on 19 December.
Officials are also looking at introducing a law on “fake news” to eliminate what they deem as lies and disinformation, which went viral on social media during the 2019 protest. The Government and the Police claimed they were major victims of this false information.
Looking back to mid-2020 when the idea of a national security law was first mooted, officials assured Hongkongers the law would only “target a very small number of people”.
Nothing can be further from the truth.
22 Oct 2021 | Opinion, Ruth's blog
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On 15 October 1971, in the depths of the Cold War, the feted British poet Stephen Spender wrote an impassioned appeal for the Times Literary Supplement in which he highlighted the threat of a world without creativity or impartial news as repressive regimes sought to silence dissent.
Writers, academics, journalists and artists were subject to state sanctioned persecution on a daily basis, threatened, arrested and in too many cases murdered as authoritarian leaders moved against their citizens. Watching was no longer enough, letters to the Times and statements of solidarity were no longer sufficient for Spender and a group of his contemporaries.
It was time to act, to provide an international platform for dissidents to publish their work and importantly it was time to make a positive argument for the liberal democratic values of free speech and free expression. It was time to launch Writers and Scholars International and its in-house journal Index on Censorship.
Spender concluded: “The problem of censorship is part of larger ones about the use and abuse of freedom.”
In the 50 years since Spender wrote in the TLS, Index has published the works of thousands of dissidents, their words, their art and their journalistic endeavours. From Havel to Rushdie, from Zaghari-Radcliffe to Ma Jian, their works have found a home in our publication. Their stories have been told and their works published for posterity – a recognition of their plight.
Fifty years later Spender would have hoped for us to be irrelevant, that the fundamental freedom of free expression was not just respected but embraced throughout the world. If only that was the case. Every week there is an attack on academic freedom at home or abroad, a new debate about our online rights and a new report of a systematic attack on those that embody the very principle of free speech.
In 1971 over a third of the world’s population lived under Communist rule with still more living under other forms of totalitarian regime. Today 113 countries, representing 75 per cent of the global population, completely or significantly restrict core human rights.
These aren’t just statistics, there are real people behind each headline.
In Belarus 811 people are currently detained as political prisoners by Lukashenka, including Andrei Aliaksandrau one of Index’s former staff members. In Egypt more than 60,000 people are imprisoned, including our award-winner Abdelrahman Tarek – detained and regularly tortured since the age of 16 for attending democracy demonstrations. In Afghanistan three young female journalists were brutally assassinated as they left work earlier this year. In Hong Kong the 50 leading democracy protestors have been arrested by the CCP and their families threatened.
These brave journalists and campaigners represent millions of people who cannot use their voices without fear of retribution. Every day they face a horrendous choice between demanding democratic rights or being silenced.
Index seeks to be a platform for them – providing a voice for the persecuted, ensuring that no tyrant succeeds in silencing dissent.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also wish to read” category_id=”41669″][/vc_column][/vc_row]
