24 Jan 14 | Digital Freedom, News and features, United Kingdom
(Image: Velvet/Demotix)
It wasn’t meant to be like this.
Connoisseurs of a good political bust-up may have noticed a subtle change in tempo to the online filtering debate over the Christmas period. For the argument, so long owned — in public at least — by the pro-blocking “think of the children” lobby took a sudden and unexpected twist. For a moment, the villains were not selfish libertarians, determined to place personal freedom of expression above child protection — but the incompetents in government, who had demanded a solution that was untested without first ensuring they weren’t doing more harm than good.
What went wrong?
As German military strategist Helmuth von Moltke, in the news during this World War anniversary year, once put it: “no plan of operations extends with any certainty beyond the first contact with the main hostile force”.
It was always going to be an easy win, banging on about the need to protect children and threatening internet service providers with legislation if they didn’t comply with prime ministerial demands over filtering: easy, too, to dismiss the assorted nerds and geeks who warned it wouldn’t work. As a prime ministerial adviser on this topic, Claire Perry, MP put it: “We should not allow the perfect to drive out the good”.
But since November, filters have arrived with a vengeance and even the technologically naive can see that they don’t exactly work as claimed. A BBC expose in December revealed what was always expected: They over blocked some quite useful sites, including sites dealing with LGBTI issues, sex education and even domestic violence and rape, while simultaneously under blocking a lot of porn.
Ooops!
“Not us, guv,” explained a spokesperson for Number 10. Back in July 2013, David Cameron had very presciently blocked all possible blame by requesting the UK Council for Child Internet Safety (UKCCIS) make sure this sort of thing didn’t happen. UKCCIS, a body composed approximately 50% from those with a commercial interest in this area, set up a sub-committee which met in December 2013, some weeks after the first of the new filter solutions hit parental laptops. No minutes, though: open government has been filtered!
Meanwhile, much wordage was being unleashed in the minority and progressive press. Rather like stories about government losing databases a few years back: No sooner had the press happened on one instance of ridiculous blocking, then another even more ridiculous case joined the queue.
In the circumstances, to list the legion legitimate sites that were in one way or another blocked would be tedious. So let’s stick with some of the most serious. BT, it transpired, was offering parents the opportunity to bar access to LGBT material — almost certainly direct discrimination — as well as access to social support.
In other words, if you are a child abuser or perpetrator of domestic violence, just go BT — and you can shut off one avenue to support for your victims. The filter is still available — though BT have tactfully amended the marketing description.
Two firms — Trend Micro and Dell — were also found to be selling a tool that permitted explicit blocking of LGBTI content: both, following exposure by GayStarNews, have subsequently amended their product.
It is unlikely that opinion swung irretrievably against blocking and filtering, but it is clear that the public, now aware of what those techniques mean in practice are suddenly a lot less impressed by political demands for UK providers to censor their net habits.
Along the way came something of an own goal. The latest initiative relates only to filtering and blocking of internet access through pc portals. Mobile phones have been subject to a filtering regime — largely unnoticed — since 2004, while filtering of wifi in public spaces is up for debate in 2014. The bad news, for the former, was that suddenly their activities were up for the same level of criticism as internet service providers, while discussion of the latter may no longer be quite the slam dunk that government had hoped.
So much for the panic: What about solutions? At a parliamentary meeting last week, sponsored by Julian Huppert, MP and organised by the author of this article, Jane Fae, a wide range of groups came together to discuss the issues raised. That included the usual suspects — the minorities on the sharp end of blocking — as well as representatives from industry and members from other parliamentary parties.
The problems raised here were rehashed, but the real focus was on the future, and there was little comfort for advocates of filtering. Speakers talked about taking legal action against filter companies, both in respect to discrimination and, for compensation when, as happened to one businesswoman, they find their business website blocked for no other reason than that she is transgender.
The difficulty is that government ministers have continually harped on about the Internet Watch Foundation as model solution, while blithely ignoring the fact that they also happen to be a Rolls Royce solution: Sites are individually evaluated by individual moderators. This costs serious money.
However, while this is an issue so important that government has threatened legislation if service providers don’t play ball, government — and the public — seem remarkably unwilling to stump up the many millions that would be required to come close to even a partial fix. So service providers have done what they can, reaching out to solution providers such as Nominum, Symantec and Huawei — all non-UK companies — operating a range of different filtering systems behind the veil of “commercial confidentiality” and not subject to UK law.
There is no single central service to check if a website has been wrongly filtered — even by the government’s own criteria — no central process for removing a potentially ruinous misblock. It’s the cheap option: A bit like the government deciding child protection in the UK was so important, it should be sub-contracted to a bunch of unregulated freelance social work providers.
Is regulation the answer? That was suggested, along with licensing of filter solutions and an independent audit of same. That, however, attracted little support in the meeting, being rejected both by those opposed to all filtering, and by those who felt it would create a costly and bureaucratic quango.
At the same time there was somewhat more appetite for central reporting facilities and a central appeals process. Because, how is any legitimate business supposed to conduct itself if it needs to keep a constant eye on upwards of 80 different filtering companies?
What of future debate? Ironically, the day of the meeting, Ofcom was also publishing a report that suggested parents were mostly happy with matters as they were. Government, on the other hand, intends forcing all net users to decide whether to opt out of filtering later this year. Ofcom also pointed out — as experts already did — that children, the objects of all this protection, were becoming increasingly net savvy, with significant numbers knowing how to evade filtering and cover their browsing tracks.
That is a serious issue. It is likely that children in war zones such as Syria or central Africa will have significantly more knowledge of how to use guns than the average British child. Its all about exposure. Whereas Britain, by imposing all these controls, is growing a generation that knows how to evade internet control. From there, it is but a short step to the darknet, where lurks precisely the sort of criminality that government — again — says it wants to eradicate.
We are likely to hear more about the commercial interests involved in all this. For there is a growing realisation that many of the more startling statistics and internet horror stories are produced and disseminated by companies offering filtering solutions and American evangelist organisations: Sometimes one and the same.
It is to be hoped, too, that the media and politicians will be more critical of some of the wilder statistics being tossed around in debate. Take for instance, the incidence of children viewing porn on the internet. “The average child sees their first porn by the age of just 11. Between 60 and 90 per cent of under-16s have viewed hardcore online pornography” — according to a survey carried out in 2010 by Psychologies magazine, based on the views (no numbers cited) of 14 to 16-year-olds at a north London secondary school.
As opposed to the EU Kids Online survey of over 25,000 children in 25 countries that found just 11% of UK children had viewed any form of porn online in the previous 12 months.
Which would you believe? Which do you expect to be cited approvingly — and frequently — in the tabloid press?
So where are we now? Battle has at last been joined, and finally the public can see that there are major practical problems associated with online filtering. That hasn’t, yet, diminished the appetite of the Conservative party for more of the same. Nor has it dissuaded the Labour party from jumping aboard the same bandwagon.
Meanwhile, in an act that smacks of the politics of masochism, Labour appears to have pledged that if voluntary filtering fails, then, if elected in 2015, it will legislate to introduce mandatory filters
This one, it seems, will run and run.
This article was published on 24 January 2014 at indexoncensorship.org
07 Jan 14 | Europe and Central Asia, European Union, News and features, Politics and Society, Religion and Culture
(Photo: Anatolii Stepanov / Demotix)
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
Media concentration in the EU poses a significant challenge. The media in the EU is significantly more concentrated than in North America, even when taking into consideration explanations of population, geographical size and income. Even by global standards, media concentration in the EU is high.
Another challenge arises from national media regulation, which may both fail to protect plurality and, allow an unnecessary and unacceptable amount of political interference in the way the media works. While the EU does not have an explicit competency to intervene in all matters of media plurality and media freedom, it is not neutral in this debate. A number of initiatives are underway to help better promote media freedom, and in particular media plurality. Free expression advocates, including Index, welcome the fact that the EU is taking the issue of media freedom more seriously.
Media regulation
Across the European Union, media regulation is left to the member states to implement, leading to significant variations in the form and level of media regulation. National regulation must comply with member states’ commitments under the European Convention on Human Rights, but this compliance can only be tested through exhaustive court cases. While the European Commission has, in the past, tended to view its competencies in this area as being limited due to the introduction of the Charter of Fundamental Rights into EU primary law, the Commission is looking at its possible role in this area. In part, the Commission is acting upon the guidance of the European Parliament, which has expressed significant concerns over the state of media regulation, and in particular with regard to Hungary, where regulation has been criticised for curtailing freedom of expression.
The national models of media regulation across Europe vary significantly, from models of self-regulation to statutory regulation. These models of regulation can impact negatively on freedom of expression through the application of unnecessary sanctions, the regulator’s lack of independence from politicians and laws that create a burdensome environment for online media. Statutory regulation of the print and broadcast media is increasingly anachronistic, raising questions over how the role of journalist or broadcaster should be defined and resulting in a general and increasing confusion about who should be covered by these regulatory structures, if at all. Frameworks that outline laws on defamation and privacy and provide public interest and opinion defences for all would provide clarify for all content producers. In the majority of countries, the broadcast media is regulated by a statutory regulator (due to a scarcity of analogue frequencies that required arbitration in the past), yet, often, the print media is also regulated by statutory bodies, including in Slovenia, Lithuania, Italy; or regulated by specific print media laws and codes, for example in Austria, France, Sweden and Portugal. As we demonstrate below, many EU member states have systems of media regulation that are overly restrictive and fail to protect freedom of expression.
In many EU member states, the system of media regulation allows excessive state interference in the workings of the media. Hungary’s system of media regulation has been criticised by the Council of Europe, the European Parliament and the OSCE for the excessive control statutory bodies exert over the media. The model of “co-regulation” was set up in 2010 through a new comprehensive media law[1], culminating in the creation of the National Media and Infocommunications Authority, which was given statutory powers to fine media organisations up to €727,000, oversaw regulation of all media including online news websites, and acts as an extra-judicial investigator, jury and judge on public complaints. The president of the Media Authority and all five members of the Media Council were delegated exclusively by Hungary’s Fidesz party, which commanded a majority in Parliament. The law forced media outlets to provide “balanced coverage” and had the power to fine reporters if they didn’t disclose their sources in certain circumstances. Organisations that refused to sign up to the regulator faced exemplary fines of up to €727,000 per breach of the law. While the European Commission managed to negotiate to remove some of the most egregious aspects of the law, nothing was done to rectify the political composition of the media council, the source of the original complaint to the Commission.
Hungary is not the only EU member state where politicians have excessive influence over media regulators. In France, the High Council for Broadcasting (CSA), which regulates TV and radio broadcasting, has nine executives appointed by presidential decree, of which three members are directly chosen and appointed by the president, three by the president of the Senate, and three by the president of the National Assembly. According to the Centre for Media and Communication Studies, this system for appointing authorities has the fewest safeguards from governmental influence in the EU.
Many countries have statutory underpinning of the press, which includes the online press, including Austria, France, Italy, Lithuania, Slovenia and Sweden. Some statutory regulation can provide freedom of expression protections to those who voluntarily register with the regulatory body (for instance in Sweden), but in many instances, the regulatory burden and possibility of fines for online media can chill freedom of expression.
The Leveson Inquiry in the UK was established after the extent of the phone-hacking scandal was discovered, revealing how journalists had hacked the phones of victims of crime and high profile figures. Lord Justice Leveson made a number of recommendations in his report, including the statutory underpinning of an “independent” regulatory body, restrictions to limit contact between senior police officers and the press that could inhibit whistleblowing, and exemplary damages for publishers who remain outside the regulator. Of particular concern was the notion of statutory unpinning by what was claimed to be an “independent” and “voluntary” regulator. By setting out the requirements for what the regulator should achieve in law, it introduced some government and political control over the functioning of the media. Even “light” statutory regulation can be revisited, toughened and potentially abused. Combined with exemplary damages for publishers who remained outside the “voluntary” regulator (damages considered to be in breach of Article 10 of the European Convention of Human Rights by three eminent QCs), the Leveson proposals were damaging to freedom of expression. The situation was compounded by the attempt by a group of Peers in the House of Lords to exert political pressure on the government to regulate the press, potentially sabotaging much-needed reform of the archaic libel laws of England and Wales. This resulted in the government bringing in legislation through the combination of a Royal Charter (the use of the Monarch’s powers to establish a body corporate) and by adding provisions to the Crime and Courts Act (2013) that established the legal basis for exemplary damages. It is arguable that the Leveson proposals have already been used to chill public interest journalism.
In part a response to the dilemma posed by Hungary, but also to wider issues of press regulation raised by the Leveson Inquiry in the UK, vice president of the Commission Neelie Kroes has overseen renewed Commission interest in the area of media regulation. This interest builds upon the possibility of the Commission using new commitments introduced through the Charter of Fundamental Rights into EU primary law, such as Article 11 of the Charter, which states: “The freedom and pluralism of the media shall be respected.” The Commission is now exploring a variety of options to help protect media freedom, including funding the establishment of the Centre for Media Pluralism and Media Freedom and the EU Futures Media Forum. In October 2011, Kroes founded a High Level Group on Media Freedom and Pluralism to look at these issues in more detail. The conclusions were published in January 2013.
Many of the recommendations of the High Level Media Group are useful, in particular the first recommendation: “The EU should be considered competent to act to protect media freedom and pluralism at State level in order to guarantee the substance of the rights granted by the Treaties to EU citizens”. Yet some of the High Level Group’s conclusions do not provide a solution to questions of appropriate legislation within the EU. The group called for all member states to have “independent media councils” that are politically and culturally balanced with a socially diverse membership and have enforcement powers including fines, the power to order printed or broadcast apologies and, particularly concerning, the power to order the removal of (professional) journalistic status.[2] Political balance could be interpreted as political representation on the media councils, when the principle should be that the media is kept free from political interference. This was an issue raised in particular by Hungarian NGOs during the consultation. Also of particular concern is the suggestion that the European Commission should monitor the national media councils with no detail as to how the Commission is held to account, or process for how national media organisations could challenge bad decisions by the Commission. The Commission is awaiting the results of a civil society consultation. Depending on the conclusions of the Commission, stronger protections for media freedom may be considered when a state clearly deviates from established norms.
[1]Act on the Freedom of the Press and the Fundamental Rules on Media Content (the “Press Freedom Act”) and the Media Services and Mass Media Act (or the “Media Act”)
[2] p.7, High Level Media Group on Media Freedom and Pluralism
20 Aug 13 | News and features
I don’t have a problem with sending journalists to gaol.
Sometimes we break the law, and sometimes we do it in ways that are not defensible as being in the public interest, or for reasons that are not related to our journalism. I also think it’s okay for the police to detain and question journalists, as they may anyone else. I work on the assumption that we should all, as citizens, respect the rule of law and act within legal constraints – a big part of any journalist’s training covers legal issues around contempt, defamation, confidentiality and copyright.
I don’t even want special protection under the law as a “journalist” because then someone has to decide who counts as one, and as we’ve seen in the UK with the debate over the Leveson inquiry, that quickly ends up with some sort of state-approved licensing mechanism which none of us would find acceptable.
If there is to be protection then it should cover “acts of journalism”, no matter who commits them, and it should by and large rely on case law established by brave people taking risks to make information public and then defending their actions, also in public. As a working journalist I’m prepared to make promises to sources that could result in my spending time in prison, and I respect those of my colleagues who have put themselves on the line to establish the boundaries of acceptable journalistic practice.
Unfortunately, while we in the press have by and large played fair, it’s now clear that the state hasn’t. The revelations about the way the NSA and GCHQ operate have confirmed the view that many agents of the state either consider themselves outside the law or feel confident that the laws have been written to allow them to act in the ways they wish. They make it impossible to respect the law as it stands, and impossible to argue that we as citizens must simply obey laws that have been written to take away our liberty, our freedom to speak without being monitored, and our ability to act to change the world for the better whether by speaking truth to power, telling the world what is really going on, or campaigning in the streets and online to reform laws and practice.
This week’s detention of David Miranda under the UK’s Terrorism Act is a defining point. Miranda may have been carrying digital copies of secret documents made available to Laura Poitras and his partner Glenn Greenwald, but that does not make him a credible suspect in an investigation into terrorism, except to a paranoid state whose laws have been written to allow the security services unfettered power to detain and investigate anything they consider threatening.
But of course, that is what we have. Here in the UK the word “terrorism” has been stripped of all meaning so that it can routinely be used to cover any activity that the state does not fully approve of, or anything that might disrupt the free operation of the security apparatus ostensibly built to protect us from that same “terror”.
As a result many activities, from campaigning to marching to writing to helping uncover a vast, illegal conspiracy to surveil and monitor the entire internet, is covered by provisions of anti-terror legislation passed by frightened legislators willing to be persuaded that such draconian powers would only be used against clearly wicked people planning clearly horrible acts of mass murder. They were unable or unwilling to foresee that it would be used to hound journalists or those working for newsgathering organisation or that it would be used to justify oppression of anyone who stands out against any government policy. This is the security state, and while we may have watched it being assembled brick by brick in the last decade, the final brick snapped into place this week.
It is time for us to call on Obama, Cameron, Clegg and the other architects of oppression to “tear down this wall“. And yes, the irony of finding that I need to quote Ronald Reagan has not escaped me.
Bill Thompson is a writer and broadcaster. This post was originally published at The Bill Blog
