03 Feb 15
By Thomas A. Bass
Today Index on Censorship continues publishing Swamp of the Assassins by American academic and journalist Thomas Bass, who takes a detailed look at the Kafkaesque experience of publishing his biography of Pham Xuan An in Vietnam.
The first installment was published on Feb 2 and can be read here.
I write to Long, asking him to remove his footnotes. The poor man is now the mouse in the middle, caught between an exigent author and equally demanding censors. As we descend into the fine points of Vietnamese history and geography, my editor and I embark on a voluminous correspondence. The nature of this correspondence is exemplified by Rung Sat, the Swamp of the Assassins, which is the first item that Long has tagged for a footnote.
Southeast of Saigon, bordering the city’s main shipping channel to the sea, Rung Sat is the tidal mangrove swamp that for many years was home to the Binh Xuyen river pirates. The French had used the river pirates to help manage their colonial operations in Vietnam. Bay Vien, head of the pirates, had been elevated to the rank of general and given Saigon to run as a personal fiefdom. He owned the Hall of Mirrors, the largest brothel in Asia, with twelve hundred employees. He ran the Grand Monde casino in Cholon and the Cloche d’Or casino in Saigon. Bay Vien’s lieutenant was named chief of police in the capitol region, which stretched sixty miles from Saigon to Cap Saint Jacques. Bay Vien’s most lucrative operation, with a share of the proceeds going to the French government, was the opium trade that stretched all the way from Laos to Marseille. The Swamp of the Assassins also served as a communist staging area during the Vietnam war, and the river pirates themselves had briefly doubled as communists, before they switched to the other side.
Before retiring to Paris, where he could be seen strolling down the Champs Elysees with his pet tiger on a leash, Bay Vien used to hide in the Rung Sat swamp when things got too hot in Saigon. This was the case in 1955, after legendary spook Edward Lansdale arrived in town. Intent on knocking the French from their colonial perch and replacing them with a client government loyal to the United States, Lansdale launched a military campaign against the Binh Xuyen. Vietnamese army troops fought the pirates house-to-house for control of Saigon. More soldiers were involved in this week-long battle than in the famous Tet Offensive of 1968. Five hundred people were killed, two thousand wounded, and another twenty thousand left homeless. This proxy battle between France and the United States marked the transition from the First Indochina War to the Second.
Pham Xuan An claimed that he learned everything he knew about spying from Edward Lansdale. Lansdale was An’s patron as he began his career in military intelligence, and it was Lansdale who recommended that An study journalism in the United States. Because of the Swamp’s importance for colonialists, communists, river pirates, and spies, I had done a lot of archival work to verify its position in Vietnamese history. This is why I was particularly displeased to find a footnote saying, “The author is wrong.”
It is not called Rung Sat but Rung Sac, said Long, thereby turning the Swamp of the Assassins into the Forest of Seacoast Shrubs. (Rung means forest, but when dealing with wet mangrove forests, one might plausibly call them swamps. Sat is a Sino-Vietnamese combining word meaning death, as in am sat, to assassinate.) The government has renamed the Swamp because the government says this was never its correct name. And why is this? Because the government maintains that south Vietnamese have been distorting the country’s language and inadvertently displaying their ignorance for centuries. Southerners pronounce words ending in “t” as if they ended in “k” or a hard “c.” Thus, Rung Sac mistakenly became Rung Sat because southerners can’t spell correctly and are often confused by two words that sound the same. Undoubtedly, the communist officials behind this renaming were also sensitive about having used Rung Sat as a staging area during the American war. They didn’t want to be confused with swamp-dwelling assassins.
The issue might plausibly have been resolved by saying that the area used to be called x and is now known as y. But Vietnamese censors don’t work this way. They have a totalizing view of history. They reach back through time to correct errors retroactively. Even in quoted speech, Bay Vien and Lansdale would be forced to talk about the forest of seacoast shrubs. One can imagine what kind of stilted prose this produces, as anachronisms and communist terminology are inserted into the historical record. I had no choice but to mount a campaign proving, “The editor is wrong.”
I send Long a variety of French and Vietnamese maps, including a 1955 Vietnamese map showing military operations against the Binh Xuyen river pirates. I send maps from U.S. Naval Operations in the area, a copy of President Richard Nixon’s citation to the Rung Sat Special Zone Patrol Group, and a 1974 U.S. Academy of Sciences research report on Rung Sat. I send a 2010 Google satellite map, with the area marked Rung Sat, and I even send a photo of a bus leaving Ho Chi Minh City, with its scheduled destination clearly marked as Rung Sat.
Long comes back with his own “proof and evidence,” including the web site for the Rung Sac Resort and Restaurant, and some real estate prospectuses for housing developments that are financed, I presume, by local Party officials. I press the argument through more emails, until Long eventually writes, “I agree to remove the footnote about Rung Sat entirely.” As we discuss the rest of the footnotes, Long and I return to fighting hand-to-hand in the hedgerows of literature. Every email exchange becomes the Swamp of the Assassins Redux, until finally Long proposes “to remove wrong footnotes or footnotes concerning your mistakes,” I graciously accept his offer.
Next we turn to discussing the title of the book. “The Spy Who Loved Us” could be translated as “The Spy Who Loved America,” or, more poetically, as “America’s Best Enemy,” except that the censors reject these titles. As Long explains, “‘America’s Best Enemy’ is good, but somewhat sensitive. Why ‘best enemy’? Is this implying that Pham Xuan An was not entirely loyal to the revolutionary cause?” After further reflections on “the right viewpoint,” Long admits that “the issue proves to be more intricate than we initially thought.” Later I receive word that “The Spy Who Loved America” has been “immediately rejected” by Vietnam’s “publishing authorities.”
By this time, the people helping me review the manuscript (all of whom wish to remain anonymous) have compiled a list of phrases, sentences, and paragraphs that have been bowdlerized or pruned from the text. When I send this list to Long, he replies, “I assure you that the translator did not omit any sentences or paragraphs. He only highlighted sensitive phrases. The omissions or modifications are mine.”
In October 2010, Long writes to say that he is “tired of this project” and discouraged by having the book rejected by two state-owned publishing companies. He is trying to secure a publishing license from a third company, but people are telling him that the upcoming 11th Communist Party Congress, in the spring of 2011, makes it a “sensitive time” for publishing in Vietnam. This is a delicate moment “when everybody takes non-action to avoid complexities,” he says.
Writing to my agent in December 2010, Long says, “We understand the impatience of our author! But the situation is worse than you imagine. Another state-owned publisher has refused to issue a publishing license for our translation. Clearly, it is a highly-sensitive book at this moment in time. Everything is now hanging in the wind.”
When Long writes to tell me that another batch of publishers has refused to give him a license, I imagine the process as something akin to Random House having to clear a book through the Pentagon Publishing Company. If Pentagon Press won’t ink the deal, then Random has to go to publishing houses owned by Homeland Security or the FBI. These negotiations must be prolonged and humiliating, and, in a gift-giving culture like Vietnam, they must also be expensive.
I cool my heels through 2011, waiting for the Communist Party to shuffle a new set of rulers into place. In February 2012, I write to Long, wishing him a happy Water Dragon year and asking if he would kindly provide me with a list of all the governmental bodies that have so far been involved in censoring my book.
A month later, he writes back to apologize for being out of touch. He says he has left Nha Nam to go to work as an editor at a company that publishes math books for children. I feel a twinge of conscience, fearing that I might have been responsible for this change in jobs. “About the license to publish The Spy Who Loved Us,” he writes, “Nha Nam has been applying and still continues to apply to several publishers for a publishing license, not stopping at any time as you maybe think. I have asked for the latest information and was told that officials at Nha Nam still hope that the book will be published.”
“Officially, only state publishing houses are permitted to produce printed books,” Long explains. “So a privately-owned (non-state) company like Nha Nam must participate in so-called joint publication, in order to publish a book under the aegis of a state publishing house and pay a publication fee to this publishing house.”
“Technically, there is no censorship in Vietnam,” he says, “but directors or editors-in-chief of the publishing houses are sometimes required to remove sensitive items, or even are timid enough to let the book go unpublished (this is our case). This kind of action we call self-censorship, and it is the Gordian knot of the Vietnamese publishing industry.”
Long attaches to his email a copy of Vietnam’s Law on Publishing, a twenty-two-page document that does indeed say quite plainly, in Article 5.2, “The State shall not censor works prior to their publication.” The rest of the document is devoted to contradicting Article 5.2, as it enumerates what is “prohibited during publishing activities.” This includes “propaganda against the Socialist Republic of Vietnam (Article 10),” the incitement of war and aggression, the “spread of reactionary ideology, depraved life styles, cruel acts, social evils and superstition, or destruction of good morals and customs.” Other sections are devoted to the protection of Party, military, defense and other kinds of state secrets. Also forbidden is the “distortion of historical facts,” particularly those “opposing the achievement of the revolution.”
Long tells me that my new editor at Nha Nam is Ms. Nguyen Thi Thu Yen, who appears to be doing double duty as the person who negotiates foreign contracts. After our months of emailing back and forth, Long and I had prepared a second set of galleys, stripped of footnotes and corrected, at least as far as my advisors and I could push it. The manuscript is still bowdlerized and rewritten in dozens of places. All criticism of China has been removed. So too are any references to reeducation camps, graft, corruption, mistakes made by the Communist Party, and other “sensitive” subjects. Unfortunately, Long’s text will soon be supplanted by another, officially-licensed version. Again, I have misunderstood the nature of Vietnamese publishing. After all these months, my book has not yet been censored. It has undergone a kind of pre-censorship review, but the serious work of scrubbing sensitive material from the text has yet to begin.
Part 3: Hostage trade
This second installment of the serialisation of Swamp of the Assassins by Thomas A. Bass was posted on February 3, 2015 at indexoncensorship.org
19 Dec 14 | India, News and features
The state of free speech in India remains a cause for concern judging by the rise in recorded attacks on the media and the increasing use of defamation suits — the most marked trends in 2014.
The figure for attacks on the media rose sharply with better data collection. There were at least 85 attacks this year. For the first time, since January 2014, the National Crime Records Bureau (NCRB) has begun collecting data on attacks on the media as a separate category.
Reported cases of defamation and legal notices alleging defamation totaled 21 in 2014 (till December 15). Of the eleven new cases recorded, seven were filed against media, two against college publications, and 3 against individual politicians. Two were court orders against publishers, a total of 14. Those against the media included the cases filed by Justice Swatanter Kumar and Indian captain M.S. Dhoni; politician Gurudas Kamat, and the Sahara Group.
In addition, one defamation conviction was upheld in a case filed earlier, against Vir Sanghvi when he was at the Hindustan Times.
Seven legal notices were served during the year — five to media houses, one to a marketing federation for the advertisement they ran, and one to journalist-authors. The last was sent by Mukesh Ambani-led Reliance Industries Ltd to Paranjoy Guha Thakurta and other authors of the book Gas Wars: Crony capitalism and the Ambanis. A Rs 100 crore notice was sent by industrialist Sai Rama Krishna Karuturi, Managing Director of Karuturi Global Ltd, to environmental journalist Keya Acharya. Infosys, and a former police commissioner in Pune also served legal notices on the media in the year gone by.
There was a drop in the deaths of journalists from eight in 2013 to two this year. However, a hate crime was recorded in the death of a software engineer in Pune, underlining the spike in hate speech cases. Apart from censorship across media and of books, theatre and film, there were at least 85 cases of attacks on journalists, 62 of which were from Uttar Pradesh alone.
These and other instances form part of the reported cases in the Free Speech Tracker of the Free Speech Hub till December 15, 2014. A project of the media watch site The Hoot the Free Speech Hub has been monitoring freedom of expression in India since 2010 and this is its fifth annual report. The tracker looks at a range of issues, including journalists’ deaths, attacks on journalists and on citizens, threats and arrests arising out of free speech issues, censorship, defamation, privacy, contempt, surveillance, and hate speech.
Seven defamation notices, and six legal notices were against media houses or journalists. In addition police complaints alleging defamation were also filed. The defamation cases also resulted in gag orders against the media, drawing criticism from the Editors Guild of India but to no avail. A defamation case filed by former President of the BJP, Nitin Gadkari also resulted in the arrest of Aam Aadmi Party leader Arvind Kejriwal in May, for calling the former corrupt. Kejriwal refused to furnish a bail bond and was remanded to judicial custody. The latest case, a Delhi police directive to radio stations to stop broadcasting a jingle from the Aam Aadmi Party on the grounds of defamation, only served to illustrate the extreme sensitivity of the powers that be to any criticism.
Clearly, defamation cases act as a pressure and silencing tool. Congress spokesperson and former minister Manish Tiwari faced arrest in a criminal defamation case filed by former BJP President Nitin Gadkari for alleging that the latter held a ‘benami’ flat in the Adarsh housing society. But after a summons was issued for his arrest, Tiwari submitted an unconditional apology and the case was withdrawn.
In another case, the Sahara media group filed a defamation case against Mint editor Tamal Bandopadhyay and the Kolkata High Court stayed the release of his book, Sahara: The Untold Story but a disclaimer and a settlement followed and the case was withdrawn.
Hate speech remains on the fault lines of free speech and, given the unabashed use of hate propaganda during the campaign for the 16th Lok Sabha elections, there was a sharp spike in the number of hate speech cases to 20 this year, double the 2013 figure.
The arrest of people for Facebook posts continued, despite clear guidelines issued on cases related to Section 66 (A) of the Information Technology Act in the wake of the arrest of two students from Palghar in 2012 and a pending case challenging the provisions before the Supreme Court of India. Sedition cases also cropped up; a student was arrested in Kerala for sedition for remaining seated while the national anthem was being played in a cinema.
Apart from the ignominious cave in by book publishers to the demands of Hindutva organisations, as in the case of the Wendy Doniger book The Hindus, other attacks on the media and civil society activists and violence by vigilante groups bent on imposing a regressive moral agenda, added to the potent brew for free speech violations in 2014.
Highlights
Deaths : Two journalists and a victim of a hate crime
There has been a drop in the deaths of journalists from eight in 2013 to two this year. Tarun Acharya in Odisha and M.N.V. Shankar in Andhra Pradesh were brutally killed days after reporting on malpractices by local business people.
The third death, of 24-year old Mohsin Shaikh, a software engineer in Pune, was triggered by a Facebook post allegedly defamatory to 17th century Maratha ruler Shivaji and the late Shiv Sena leader Bal Thackeray. The engineer had no connection with the Facebook post but was targeted because his beard indicated his identity as a Muslim. Police arrested the founder of the Hindu Rashtra Sena, Dhananjay Desai, for a hate crime.
In 2013, eight journalists died, including Sai Reddy who was killed by Maoist groups in Chhattisgarh. In April 2014, these groups admitted that killing Reddy was a mistake. There were five deaths in 2012 and three in 2011.
Defamation cases and legal notices increase to 21
Defamation cases and legal notices threatening defamation had a chilling effect on freedom of expression with 21 instances being recorded through the year, an increase from the two cases in 2012 and seven in 2013. From politicians to business houses, lawyers, former judges and media houses, defamation notices were sent against book publishers, advertisers, other media houses and journalists.
Arrest of 13 persons, including a journalist under NSA, a student for sedition and three persons for Facebook-related content
In Kerala, nine students were arrested for a crossword clue in a college magazine allegedly unfavourable to Prime Minister Narendra Modi. Other arrests included a journalist from Assam, allegedly due to links with insurgency groups and a student from Kerala on charges of sedition for remaining seated while the national anthem was being played in a cinema and three others for Facebook-related content.
Censorship: 85 instances
The number of instances of censorship this year fell to 86 from 99 in 2013 and 74 in 2012. Internet-related censorship fell marginally from 32 in 2013 to 27 this year. Ten of these instances were related to Facebook posts that attracted cases and triggered violence in at least three instances. There were 25 instances of censorship in print and the broadcast media, including five gag orders on media reportage and one on radio broadcasts of an advertisement.
Censorship showed an overall decrease from 99 instances last year to 85 this year. However, censorship in the broadcast media saw an increase to 14 instances, besides five instances of gags on media coverage of sensitive issues being obtained by a range of people, including former judges charged with sexual harassment and sports bodies and educational institutions.
Attacks, threats and harassment: 101 instances
Direct physical attacks on the media and on citizens for freedom of expression issues remained high, with at least 85 cases of attacks recorded by the media alone in 2014. In addition, there were three attacks on other citizens, ten cases of threats and three of harassment.
For the first time, the National Crime Records Bureau has begun collecting data on attacks on the media as a separate category from January this year. In a written reply to a question in the Lok Sabha, the Minister of State for Information and Broadcasting Rajyavardhan Rathore said that, up to June, 62 of these cases occurred in Uttar Pradesh.
According to the Minister’s reply, up to August 8, there were six cases each in Bihar and Madhya Pradesh, with no arrests in Bihar but eight in Madhya Pradesh. Cases of attacks on the media were also registered in Andhra Pradesh, Gujarat, Assam and Meghalaya and seven people were arrested in connection with the cases in Andhra Pradesh, Gujarat, Maharashtra, and Meghalaya.
While more details are awaited on these attacks and on how many were related to professional work, the Hoot’s Free Speech Tracker has details of 18 instances of attacks and 12 instances of threats recorded this year. Of these, 15 attacks and nine threats were directed at the media, including a police assault on journalists covering news events, the sand mafia attacking an environmental journalist, separate instances of a petrol bomb and gunshots fired on the homes of journalists and reports of journalists being used as ‘human shields’ in Kashmir.
Sharp spike in hate speeches
This year saw the sharpest rise in hate speeches from two in 2012 and ten in 2013 to 22, peaking in the run-up to what was billed as the most divisive general election in India’s history. Apart from riots that broke out due to the circulation of videos or inflammatory messages, instances of hate propaganda and riots marked the increase in hate speeches in the country and, given the scheduled elections to various state assemblies, shows no signs of abating till the end of the year — witness the reports of the hate speech made by BJP Minister Sadhvi Niranjan Jyoti in December 2014.
Snapshot of the last three years
| Categories |
2014 |
2013 |
2012 |
Deaths of journalists
Death due to hate crimeTotal |
02
0103 |
08
|
05 |
Attacks on the media
Attacks on citizens
Threats
Harassment
Arrests/detentionsTotal |
85
03
10
03
04105 |
20
04
0225 |
39
|
| Censorship :
Gags on all media
Print
Electronic media
Internet
Feature films
Documentary films
Theatre
Art
Music
Literature and educational curriculum
Total |
06
06
14
26
10
04
04
–
0511
86 |
15
11
32
21
02
02
03
06
07
99 |
08
04
41
14
07
74 |
| Privacy & Surveillance |
08 |
13 |
05 |
Defamation cases
Legal notices
Court order Total |
12
07
0221 |
07 |
02 |
Hate speech
Hate propagandaCourt cases on hate speech restrictions |
20
0202 |
10 |
02 |
| Policy, regulation |
02 |
07 |
03 |
Sedition (including three withdrawals)
Contempt
Legislative privileges |
05
03 |
02
02
01 |
|
The year in review
Free speech violations in 2014 included the death of two journalists for their investigative stories on malpractices in local businesses, the killing of a young software engineer in Pune for what police termed a ‘hate crime’, an increase in defamation cases and legal notices to curb reportage of a range of issues, increasing attacks on the media and civil society activists, violence by vigilante groups and a spike in hate speech cases during various election campaigns.
While the number of deaths of journalists for their work may have fallen from the eight of the preceding year to two this year — Tarun Acharya and M.N.V. Shankar – they underline the extreme vulnerability of journalists working in small towns, particularly on unearthing crimes.
Acharya, 29, was a stringer for Kanak TV in Odisha and was killed on May 27 in Khallikote town of Ganjam district. He had done an investigative story on the alleged employment of children in a cashew processing plant owned by one S. Prusty. Shankar, 52, a senior correspondent with Andhra Prabha newspaper, was killed in Chilakaluripet town of Guntur district on May 26, a few days after his newspaper published his report on the kerosene oil mafia. While the police arrested two persons in connection with Acharya’s murder, Shankar’s killers have yet to be found.
Attacks, arrests
This year saw an increase in attacks on the media, as officially recorded by the National Crimes Bureau for the first time, an increase in threats to journalists as well as the arrests of journalists for alleged involvement with insurgency groups and the arrest of citizens for posts on social media.
Of the eight cases linked to Facebook posts, one person was arrested for a post allegedly against West Bengal Chief Minister Mamta Banerjee; an Aam Aadmi Party activist was arrested for forwarding an allegedly anti-Modi text in Karnataka; a student was arrested for allegedly mocking the national anthem in Kumta, Karnataka; and in Kerala, a student was arrested for sedition for allegedly insulting the national anthem by remaining seated while it was being played in a local theatre.
Defamation
The intimidating effect of a possible defamation suit was clearly on the rise as 2014 recorded 21 instances of defamation against individuals and the media. These included 13 cases of defamation and six legal notices, besides one court order.
In May, Aam Aadmi Party leader Arvind Kejriwal was arrested in a defamation case filed by former president of the BJP, Nitin Gadkari, for calling the latter corrupt. He refused to furnish a bail bond and was remanded to judicial custody.
Former Supreme Court judge and National Green Tribunal Chairperson Justice Swatanter Kumar filed a defamation case against two English television channels and a leading English newspaper as well as a law intern who had filed a complaint of sexual harassment against him. He also managed to get a gag order on media reportage of the case.
In another case, India cricket captain M.S. Dhoni filed a Rs 100 crore defamation case in the Madras High Court against media houses Zee Media Corporation and News Nation Network over allegations of his involvement in match-fixing.
Clearly, defamation cases serve to silence people. Congress spokesperson and former minister Manish Tiwari faced arrest in a criminal defamation case filed by former BJP President Nitin Gadkari for alleging that the latter held a ‘benami’ flat in the Adarsh housing society. But after a summons was issued for his arrest, Tiwari submitted an unconditional apology and the case was withdrawn.
In another case, the Sahara media group filed a defamation case against Mint editor Tamal Bandopadhyay and the Kolkata High Court stayed the release of his book, Sahara: The Untold Story, but a disclaimer and a settlement followed and the case was withdrawn. Given that decriminalizing defamation has been a long-standing demand of journalists’ organisations, it is ironical that a media group such as Sahara should resort to defamation notices.
It was not the only one. India TV sent a defamation notice to aggrieved employee Tanu Sharma who had alleged sexual harassment and had attempted suicide outside the company’s office. It also sent a defamation notice to media watch site Newslaundry which carried a report on the incident.
Among the other cases, Infosys sent notices of Rs 2000 crore each to three publications owned by Bennett, Coleman and Co. Ltd and The Indian Express Ltd. Other multi-crore defamation notices included separate notices sent by Mukesh Ambani’s Reliance Industries Ltd and Anil Ambani-led Reliance Natural Resources Ltd to journalist Paranjoy Guha Thakurta, author of Gas Wars: Crony Capitalism and the Ambanis. The notices were an attempt to remove the self-published book from the website promoting it.
An Inter Press Service story by environmental journalist Keya Acharya on the legal, financial, tax, labour and land problems of the Ramakrishna Karuturi-owned Karuturi Global Limited in Kenya and Ethiopia attracted a Rs 100 crore defamation notice.
Censorship
Censorship showed an overall decrease from 99 instances last year to 86 instances this year. However, censorship in the broadcast media saw an increase to 14 instances, besides five instances of gags on media coverage of sensitive issues being obtained by a range of people, including former judges charged with sexual harassment and sports bodies and educational institutions. A gag on radio jingles by Delhi police was the latest attempt at censorship.
An increase in censorship was also recorded in the arena of literature and non-fiction books, including in academia. In February 2014, Penguin, the publishers of The Hindus: An Alternative Histor, by the well-known Indologist Wendy Doniger, decided to pulp all remaining copies of the book in an out-of-court settlement with Shiksha Bachao Andolan (SBA), which had filed a civil suit against the publishers in 2011.
The organization, headed by Dinanath Batra, targeted other publishers and Orient Blackswan followed suit to withdraw ‘Communalism and Sexual Violence: Ahmedabad since 1969’ by Dr Megha Kumar. The same publisher also put under review Sekhar Bandyopadhyay’s book From Plassey to Partition: A History of Modern India.
In 2008, SBA was instrumental in filing a complaint before the Delhi High Court seeking the withdrawal of A. K. Ramanujam’s essay, Three Hundred Ramayanas: Five Examples and Three Thoughts on Translations, from Delhi University’s history syllabus. In July 2014, following the election victory of the BJP, six of Batra’s books were prescribed as compulsory reading as supplementary literature in the Gujarat state curriculum.
Hate speech
Over the last few years, hate speech and hate propaganda have tested the limits to free speech. The Free Speech Tracker has recorded two instances of hate speech in 2012 and ten in 2013. By 2014, the number of hate speech cases doubled, with an additional complaint of hate campaigning.
The death of an innocent software techie, Mohsin Sadiq Shaikh, 24, at the hands of members of a Hindu fundamentalist group, the Hindu Rashtra Sena in Pune on June 4, was a chilling reminder of the violent consequences of hate propaganda. A Facebook post with allegedly derogatory photographs of 17th century Maratha ruler Shivaji and the late Shiv Sena leader Bal Thackeray had triggered violence in Pune and a mob chanced upon Shaikh and his friend, returning home after offering namaz. Shaikh, who was identified as a Muslim by the skull cap he wore, was beaten to death. Later, seven members of the organization, including its leader, Dhananjay Desai, were arrested and charged with his murder.
Other hate speech cases were recorded throughout the year, beginning with the general election campaign and continuing to the end of the year with a lawyer from Mumbai being charged with posting allegedly inflammatory content on Facebook and BJP MP Sadhvi Niranjan Jyoti making offensive remarks on December 3.
Prominent leaders of political parties, including BJP President Amit Shah, were booked for hate speech. Other political leaders charged with hate speech included Pravin Togadia (VHP), Ramdas Kadam (Shiv Sena), Giriraj Singh, Baba Ramdev, Tapas Pal (Trinamool Congress), Azam Khan (Samajwadi Party), Pramod Mutalik (Sri Ram Sene), Imran Masood and Amaresh Mishra (Congress-I).
Contempt, privacy and surveillance
Contempt cases continued to come up and three instances were recorded, including one case that cited the archaic provision of ‘scandalising the court.
Instances of privacy also continued to figure on the Free Speech Tracker as business people and social activists cited privacy concerns to stall books and films based on their lives. In the latter category, Gulabi Gang founder Sampat Pal sought a stay on a Bollywood feature film based on her life on the grounds of privacy and copyright but settled out of court. And the Bombay High Court directed the makers of a film based on the Khairlanji massacre to apply for a fresh certificate from the Central Board of Film Certification.
Surveillance, a growing issue both globally and nationally, remained a concern as the new government reiterated its plans to go ahead with the UPA’s controversial UID scheme even as it quietly continued the roll out of the surveillance programmes of the previous regime.
For a detailed list of the instances from the Free Speech Tracker, please click here.
This article was originally posted on 16 Dec 2014 at thehoot.org and is posted here with permission.
20 Nov 14 | Media Freedom, Press Releases, Statements
November 2014 (PDF)
As a UK-based organisation dedicated to the promotion of free speech and elimination of censorship worldwide, Index on Censorship is pleased to have the opportunity to provide feedback on the documents that proposed press regulator IMPRESS has drawn up ahead of its formal launch. Index also made written and oral representations to The Leveson Inquiry on the culture, practice and ethics of the press.
IMPRESS asked specific questions, to which Index has responded below. Our comments should be in no way seen as an endorsement – or indeed – a rejection of IMPRESS.
1. Do these documents meet the criteria set out in the Leveson Report, as distilled in the Royal Charter on Self-Regulation of the Press, for an independent and effective regulator? How might they be improved in this respect?
These documents reflect in large part the criteria set out in the Leveson Report and even more closely the requirements outlined in the Royal Charter on Self-Regulation of the Press, particularly on the important question of redress through swift and transparent complaints and arbitration procedures.
However, Index remains concerned that the independence and efficacy of a regulator will not be guaranteed by seeking recognition from an oversight body established by Royal Charter. A Royal Charter – though arcane – remains a political instrument. Royal Charters are established by Her Majesty’s Most Honourable Privy Council, the bulk of whom are politicians, including serving members of government. Though we accept that the Recognition Panel is conceived in a way that is intended to demonstrate absolute independence from government control, the establishment of an oversight
body through such an obscure piece of political machinery is not a mechanism likely to inspire the public trust and confidence required by the public. The whiff of undemocratic, non-transparent political involvement in the creation of the regulatory body has tainted it from the outset.
As the Privy Council says on its own website: “…once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to charters can be made only with the agreement of the Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy.” (our italics)
There is little clear evidence that the Recognition Panel, as currently conceived, would restore public trust in the British press, or indeed behave in a way that would hold a regulator successfully to account, as scandals involving the oversight of other independent regulators, such as the Care Quality Commission, have shown. A study by the Media Standards Trust has shown that more than 70% of the public believe that it is important that a new system of press self-regulation is periodically reviewed by an independent commission, but it is by far from clear that the public believes that this should be a Recognition Panel established by Royal Charter. An opinion poll conducted by Survation in April 2013 found that 67% of those surveyed concurred with a statement that any regulatory system should be set up ‘in a way that does not give politicians the final say if and when changes need to be made’.
In addition, Index remains concerned that, aside from the Royal Charter, other elements of legislation introduced in the wake of the Leveson Report represent a threat to media freedom. One of the most worrying of these is section 42 (3) of the Crime and Courts Act 2013, which sets out that an organisation which does not join a recognised regulator but falls under its remit (through being considered a “relevant publisher”) will potentially become subject to exemplary damages should they end up in court, and could also be forced to pay the costs of their opponents.
There are two principles here that threaten a free press. Firstly, that in effect joining a regulator becomes less than voluntary if you have the threat of punitive damages hanging over your head. Secondly, that those who do not join and therefore feel under threat of exemplary damages will skirt away from controversial subjects and investigative journalism, and opt instead for “safe” stories.
Such measures could be especially punitive for small publishers and news organisations with limited financial means. This has a damaging effect on free expression.
Supporters of this aspect of the act argue that exemplary damages would only apply to “reckless” action by journalists, but it is possible that a court could find that a breach of Article 8 rights to privacy and reputation was by definition “reckless” even when a journalist was pursuing an investigative news story in the public interest.
2. Do these documents (in particular the ‘sunset clause’ in the Mem & Arts) serve to protect the regulator’s independence from potential interference by politicians or civil servants? How might they be improved in this respect?
The memorandum and articles skirt around the issue of whether IMPRESS would seek recognition under the charter although it is made clear in other documents that IMPRESS would seek recognition. For the reasons outlined above, Index believes that IMPRESS should not seek recognition under the Royal Charter and that a robust ethics code, financial independence, and demonstrations of efficacy (i.e. participants shown to be held to account; swift and cheap arbitration) are the only ways in which the independence of the regulator will be truly demonstrated.
3. Do these documents serve to protect the regulator’s independence from potential interference by subscribing publishers? How might they be improved in this respect?
It is unclear from the documents supplied by IMPRESS what precisely the relationship would be between the funding mechanisms for IMPRESS and the regulator itself. The implication of the documents is that the regulator would be funded by participants (as with IPSO) but (unlike IPSO as currently envisaged) these participants would have no further role in setting the agenda for IMPRESS or carrying out its duties.
Complete transparency over the regulator’s funding is vital for its success. The agreement between participants and regulators should state explicitly that the funders can have no role whatsoever in the operations of IMPRESS or in its decision-making. Clear and total separation between the funding of the regulator and the regulator itself is vital to ensure press freedom.
The IMPRESS website identifies a number of current funders of IMPRESS but no details are given outlining the expected cost of running the regulator or the regulator’s financial plans. This raises the question of how the body can ensure it will be adequately funded — and therefore its long-term sustainability — should participants decide, for whatever reason, that they are no longer happy with the decisions being taken by IMPRESS. This should be clarified, along with greater detail on the projected cost of the regulator and its intended sources of income.
One mechanism that could help improve public confidence in the industry as a whole might be to make subscription open to individual journalists. This would mean the public could be assured that the body represents the press as a whole and would help IMPRESS to cover a fuller range of publishers who might be covered by the Crime and Courts Act.
4. At the same time, do these documents serve to give subscribing publishers confidence in the regulator’s operations? How might they be
improved in this respect, without compromising the regulator’s independence from the news industry?
It is unclear from the documents provided by IMPRESS whom it considers to be a likely member. The Crime and Courts Act sets out four cumulative criteria which must be met by a publisher to satisfy the definition of relevant. A publisher must:
. Publish “news-related material” (see below)
. Publish “in the course of a business” (whether or not carried on with a view to profit)
. [Produce material] “written by different authors”, and
. [which is] “subject to editorial control” (over the content of material, presentation
and the decision to publish).
Schedule 15 of the Act exempts publishers including broadcasters, public bodies, charities, micro businesses, and those who publish special interest titles, scientific and academic journals, company news publications, and books. But as English PEN has shown (‘Who joins the regulator: A report on the Crime and Courts Act on publishers’), a number of small publishers may nevertheless be caught in the net and there remains a “dangerous” level of uncertainty about the definition of “relevant”. Index has serious concerns that the implication of this, as detailed above, is a restriction on
investigative and challenging journalism.
5. Do these documents provide clarity about the regulator’s procedures? How might they be improved in this respect?
More clarity in the Procedures document regarding; the internal ombudsman; the complaints handling procedure; and conditions of joining, would be welcome. In its prospectus, IMPRESS states: “The regulator will not receive complaints directly unless or until the internal complaints system has been engaged without the complaint being resolved in an appropriate time.”
6. Do the IMPRESS/CIArb Arbitration Rules serve to give potential litigants in a relevant action confidence in the scheme’s capacity to provide access to justice? How might they be improved in this respect?
Index would suggest that IMPRESS consider the Alternative Dispute Resolution mechanisms outlined in the submission by the Alternative Libel Project, a collaboration between Index on Censorship and English PEN, which include suggestions on Early Neutral Evaluation. Details can be found here.
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In conclusion, Index welcomes attempts by all the sides of the press to better self-regulate in ways that both protect the independence of the media and the free speech rights of the broader public. However, we remain opposed to the Recognition Panel as established by Royal Charter as the mechanism through which oversight of any regulator should be achieved, and deeply concerned that punitive measures such as exemplary damages negate any notion of a recognised regulator being voluntary.
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This material can also be found in PDF here.
