Contents – Unsung heroes: How musicians are raising their voices against oppression
Contents
Media regulator fails to properly protect freedom of expression in online safety draft guidance
- Leading human rights KC, Phillippa Kaufmann, urges Ofcom to review landmark European Court of Human Rights judgment which established that a “statutory requirement to decrypt communications” was not lawful
- Opinion warns that service providers can not be compelled to breach UK GDPR and compromise users’ cybersecurity
- Index on Censorship criticises Ofcom’s inadequate ‘passing references’ to users’ privacy rights and warns of legal battles if draft guidance on encryption is not updated
Index on Censorship has published a legal opinion from Phillippa Kaufmann KC and Aidan Wills (both of Matrix Chambers) in response to Ofcom’s characterisation of End-to-End Encryption (‘E2EE’) as a risk factor in their Draft Guidance on online harms.
Ofcom has been tasked with implementing the Online Safety Act since 2023 and to explain how technology companies must fulfil their duty of care to users of their online services. The regulations Ofcom has drafted will go before Parliament early next year and require a careful balance between keeping people safe online while respecting individual privacy.
Index on Censorship, as well as a host of civil society organisations who submitted consultation responses on the regulations, have highlighted the regulator’s failure to recognise the benefits of using encrypted communication technologies to users’ privacy and security online.
Ofcom has implied that service providers should weaken encryption on their messaging services to mitigate risks of illegal harms. This is despite the fact that encryption of personal data is a measure that may be taken to comply with the human rights and cybersecurity requirements outlined in the legal opinion. Ofcom should outline the benefits of encryption expressly and clearly in their guidance.
CEO of Index on Censorship, Jemimah Steinfeld said:
“Index has published censored writers across the globe since 1972. Today, we’re using encrypted messaging apps to keep in touch with our network of correspondents around the world, from Iran, to Afghanistan, to Hong Kong.
We are disappointed that Ofcom has failed to properly consider human rights and practical implications in its approach to encryption. This legal opinion confirms there is inadequate consideration of how their draft guidance could undermine the security protections that millions of people rely on every day. Ofcom should revise its guidance before it’s too late, or face a wave of costly and time-consuming legal challenges in the years ahead.
We are calling on Ofcom (and if necessary, the Secretary of State for Science, Innovation and Technology, Peter Kyle) to:
- update guidance to reflect the Podchasov v Russia (Feb 2024) ruling – specifically that requiring encryption to be weakened for all users violates Article 8 rights;
- expand guidance beyond just “passing references” to provide “more detailed consideration of the human rights implications of service providers taking any measures which may weaken encryption.””
The legal opinion (which can be consulted below) was sought from expert human rights and technology barristers as Index on Censorship feared there is insufficient weight given to privacy and data protection laws in Ofcom’s draft guidance. Without encrypted communication services, journalists, their sources, and political dissidents across the world, for whom security is essential, will be negatively impacted.
Phillippa Kaufmann KC and Aidan Wills have explained the legal railguards of how content moderation regulation can operate next year when the OSA comes into force. Service providers in the scope of regulation are advised:
- When mitigating risks, they must (as per s 22 of the OSA), have particular regard to service users’ rights to freedom of expression and privacy (including data rights); and can only implement measures if they are “proportionate” (as set out in Podchasov v Russia)
- They must comply with UK GDPR which can include processing personal data “in a manner that ensures appropriate security of the personal data”, and to “implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk”.
The UK Government must defend its citizens around the world
Hello, readers. This week, the news in the UK has been dominated by the Budget, alongside anticipation of next week’s USA presidential election. Whilst a lot of media attention has been focused on the Chancellor’s number crunching, the Prime Minister also started the week with a proclamation of the importance of press freedom.
Writing for The Guardian on Monday, in an article coinciding with the News Media Association’s week-long Journalism Matters campaign, Keir Starmer vowed to protect journalism, the “lifeblood of our democracy”, and stressed the vital role of the media in holding politicians such as himself to account. “And yet this is not a given. All around the world, journalists put themselves at risk in defence of those values,” he wrote, paying tribute to press who have been killed or detained whilst operating in war zones and authoritarian regimes.
It’s heartening to see this strong defence of free speech from the Prime Minister. But around the world, we are still seeing prisoners of conscience imprisoned for simply speaking their mind, some of whom have British citizenship.
This week marked the two-year anniversary of the arrest of Toomaj Salehi, an Iranian rapper who refused to stop singing his political protest songs criticising Iranian government policy. He was sentenced to death on 24 April 2024, and while this has thankfully been overturned, he remains behind bars. This week, his cousin Arezou Eghbali wrote a piece for Index, calling on the international community to demand his release.
Perhaps one of the most high-profile cases of unjust imprisonment overseas is that of British-Iranian national Nazanin Zaghari-Ratcliffe. Spending nearly six years in detention in Iran, her situation was made worse by false comments made by former foreign secretary Boris Johnson about the purpose of her visit to Iran. You can read an article from Zaghari-Ratcliffe below, where she calls for the release of Salehi.
Then there is Alaa Abd el-Fattah, an Egyptian-British software developer and pro-democracy political activist, who was due to be released following a five-year prison sentence in Egypt on 29 September, yet remains behind bars. His family have spoken out about the lack of government support he has received, and his mother is currently on hunger strike. “I’m keeping it up until Alaa is free or I’m taken to hospital in a terrible state,” she told the BBC last week.
When he was shadow foreign secretary, David Lammy criticised the Conservatives and called for “serious diplomatic consequences” if Abd el-Fattah was not granted a consular visit and ultimately freed – but since becoming Foreign Secretary, he has not raised the case publicly. A Foreign Office spokesperson told the BBC that the government is prioritising his release: “We continue to raise his case at the highest levels of the Egyptian government.”
Another British citizen who remains behind bars is Jimmy Lai – a Hong Kong political figure and activist, who was arrested in 2020 for fraud and involvement in pro-democracy protests. Whilst Starmer has said that securing his release is a “priority”, Lai’s lawyer has criticised past and current governments, and says that David Lammy has failed to meet with herself or Lai’s son to discuss the matter. She says that David Cameron is the only foreign secretary of the past five to meet with Lai’s legal team. “This is a disappointing and flawed approach that stymies crucial efforts to free Jimmy Lai and fundamentally undermines the government’s official position that he must be released,” she told the BBC.
As we mark two years since Toomaj Salehi’s arrest, we reflect on all the political prisoners globally who have been unjustly punished for challenging their governments or speaking out against injustice. In doing so, we return to Starmer’s optimistic statement about championing free speech and ensuring politicians are held to account. Let us hope his new government uses this rhetoric and its diplomatic power to fight for its citizens around the world.
Contents – Inconvenient truths: How scientists are being silenced around the world
Contents