23 Aug 13 | Digital Freedom, Index Reports, Politics and Society, Religion and Culture, United Kingdom
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Though it has a reasonably good freedom of expression environment, the United Kingdom is wrestling with the fallout from mass surveillance leaks, press regulation, web filtering and social media guidelines. With an unwritten constitution, the right to freedom of expression comes from the practice of the common law, alongside the UK’s accession to international human rights instruments.
There have been positive developments in the UK on free speech in the last year with reform to defamation law and reform of section 5 of the Public Order Act.
The law of libel has been reformed by the Defamation Act which received Royal Assent on 25 May 2013. The reformed law, when enacted will restrict “libel tourism”, bring in a hurdle to prevent vexatious claims, update the provisions on internet publication, force corporations to prove financial loss and introduce a reasonable public interest defence. This reform will strengthen freedom of expression protections for academics, journalists and bloggers, scientists and NGOs.
Free speech is also enhanced by the United Kingdom’s strong Freedom of Information laws. Information requests are on the whole free with over 90% of requests receiving a response on time.
The recent Justice and Security Act can be used to exclude the media from hearings to consider whether a secret evidence procedure is to be used. This may cover cases where claimants have been subject to extra-judicial detention, torture and extraordinary rendition, affecting the media’s ability to perform its watchdog function.
The UK has tough state secrecy legislation. The public interest defence in the Official Secrets Act was removed in 1989 and has not been replaced.
While the freedom to protest is well-established, the use of “kettling” to deter protestors and the prosecution of “offensive” protest including the burning of military symbols and homophobic street preaching is of concern. Scotland’s recent anti-sectarian laws have criminalised “offensive” speech at football matches.
Media freedom
The publication of mass surveillance revelations by The Guardian’s Glenn Greenwald has had reverberations around the world. The UK government has moved toward confrontation with the news organisation by forcing the destruction of hard drives that contained documents leaked by former NSA contractor Edward Snowden. The recent developments around the detention of David Miranda and the seizure of material he was carrying under Section 7 of the Terrorism Act has raised concerns over press freedom.
The UK fares well internationally for media plurality with 23 independent national newspapers, as well as several hundred regional and local papers. The main TV stations are all available with every station provider. While Index believes there is strong media plurality in the UK at present, the legal framework may not be sufficient to ensure plurality in the future, as demonstrated by News Corporation’s attempted takeover of BskyB.
The phone hacking scandal exposed criminality in the British media, yet the response to the scandal has imperilled media freedom. The creation of a Royal Charter drawn up by the three main political parties to create a media regulator warranted the first government interference into the process of press regulation since 1695. Considerable confusion remains since no newspaper has agreed to be part of the new regulator. This leaves the possibility of independent regulation in the near-future.
Digital freedom
The UK upholds online freedom in comparison with other comparable democracies, but there are worrying trends on the criminalisation of social media, mass surveillance and proposals to introduce web filters.
The Regulation of Investigatory Powers Act 2000 increased the powers of the police to intercept communications. In 2012, the government attempted to extend this surveillance with its draft Communications Data Bill. The Bill would have made the surveillance and storage of UK citizens’ communications data the norm allowing an intrusion into the privacy of British citizens that would have chilled free expression. The Bill was dropped after a parliamentary committee criticised the scope of the legislation, but the Home Secretary has indicated she would like to bring forward a similar law.
Revelations of cooperative relationships between the United State’s National Security Agency and the UK’s Government Communications Headquarters as part of the mass surveillance programmes has raised serious concerns around digital freedom of expression. At the same time it is surveilling citizens’s online communications, the country is in the initial stages of possibly instituting opt-out web filters to block pornography with a consultation set to begin on 27 Aug.
The framework for copyright also has the ability to impede freedom of expression. The Digital Economy Act contains provisions allowing the government to order internet service providers (ISPs) to block websites and suspend accounts for customers accused of downloading copyrighted material.
The UK has high levels of take-up of social media and internet access. However, access is still not universal with exclusion from the internet for marginalised individuals a barrier to free speech. The recently launched Web Index report shows that the UK leads in the use of online citizen e-petitioning.
The police and executive bodies make a significant number of takedown requests to remove content according to Google’s transparency reports.
There have been an increasing number of arrests and prosecutions for ‘offensive’ comments on social media after public complaints. The Crown Prosecution Service has produced guidelines to limit the number of arrests and prosecutions. The legal framework has also been reformed with Section 5 of the Public Order Act no longer criminalising insulting behaviour or content. However, restrictive laws still apply with Section 127 of the Communications Act criminalising “grossly offensive” comments.
Artistic freedom
The UK continues to produce challenging art in a free environment for artistic freedom of expression but a chill remains around social, religious and cultural pressures on the arts and inconsistent policing of art deemed to be offensive.
A lack of guidance on the policing of culture has on occasion created significant problems for artistic freedom of expression. Large demonstrations outside performances of Gurpreet Kaur Bhatti’s play Behzti led to the play being closed down after guidance from the police. Her play about this situation, Behud – Beyond Belief was treated as a potential threat to public order with the police in Coventry asking for a fee of £10,000 per night. Policing can also be arbitrary. In 2012, a police officer told a Mayfair art gallery to remove a photo-montaged image of ancient myth Leda and the Swan from its window, despite the fact no one had complained.
While direct censorship of the Arts remains uncommon, self-censorship by artists is more routine. Artists self-censor for a number of reasons including fear of causing controversy or offence combined with special interest group campaigns that put pressure on artists to censor, financial pressures with artistic institutions not wanting to court controversy, cultural diversity policies that may encourage self-censorship and a habit of risk aversion that leads cultural institutions to focus on worst case scenarios of what might happen when taking artistic risks.
This article was originally published on 23 Aug, 2013 at indexoncensorship.org.
22 Aug 13 | Digital Freedom, Index Reports, News and features, Politics and Society, Religion and Culture, United States
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Freedom of expression is generally protected in the US, but political, legal, economic and cultural factors continue to constrain this fundamental right. The First Amendment of the US Constitution prohibits laws that abridge free speech, academic freedoms and the right to assemble are generally protected, and violence against journalists is rare.
National security is used excessively to justify free speech and privacy restrictions.
Revelations over the National Security Agency’s “Prism” programme, which it is claimed gives the US government powers of mass surveillance over web communications, have caused huge concern over the authorities’ attitudes to free speech and privacy.
Government transparency and accountability are also key concerns. The 1966 Freedom of Information Act and various state laws are meant to shine light on classified government documents, but many agencies do not comply with these laws or do so significantly later than mandated and with heavily redacted information. The aggressive prosecution and sentencing of WikiLeaks source Bradley Manning and the pursuit of Edward Snowden highlights the Obama administration’s attitude to whistleblowers.
Beyond security and secrecy, some of the greatest challenges to freedom of expression are linked to rapid shifts in technology and online behaviour so that is for digital section. Money is also key. The Citizens United v. Federal Election Commission Supreme Court case in 2010 extended first amendment rights to corporations and unions, threatening the free speech rights of individuals by diminishing the power of their voices to compete with billion-dollar industries. Although US libel laws generally protect the public interest — public figures must prove actual malice rather than mere negligence to win a suit — “Strategic lawsuits against public participation” (SLAPPs) sometimes silence criticism, as libel actions in the US remain expensive.
Despite these concerns, the state of free expression in the US is generally healthy.
Media Freedom
The US enjoys a free and diverse press, although aggressive political partisanship, the consolidation of media ownership and other financial troubles have threatened this freedom as traditional institutions struggle to stay afloat and adapt to an increasingly digital media landscape. Local and national newsrooms have shrunk, and reporters are overstretched , diminishing the quality of American journalism.
Laws against obscenity, indecency and profanity set out and enforced by the Federal Communications Commission (FCC) restrict what content can appear on free-to-air broadcasting.
Most states have shield laws that protect journalists from revealing their sources, and the Obama administration is proposing a federal shield law, But the government’s prosecution of whistleblowers has raised real concern. The accessing of Associated Press reporters’ phone records in pursuit of leaks has also been a source of alarm.
The Obama administration has been criticised for its aggressive pursuit of whistleblowers and journalists and demands for source information in cases of government secrecy. While the president did sign a Whistleblower Protection Enhancement Act into law in late 2012, the behaviour of the authorities when confronted with leaks has been heavy handed.
Meanwhile, physical attacks by police against journalists and bloggers covering the Occupy movements hurt the US’ ranking in several press freedom indices in 2012.
Digital Freedom
About 75 percent of the population is online, but affordable high-speed broadband remains elusive. Copyright legislation and surveillance currently represent some of the greatest threats to digital freedom of expression.
The latest Google Transparency report shows that the US requests more user data than any other country and issues the second most court orders for content removal behind Brazil. The 1998 Digital Millennium Copyright Act (DMCA) criminalises the circumvention of copyright controls online without regard for how users intend to use the tools. The Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) were shelved in 2012 following highly publicised website blackout campaigns by internet activists and web companies, but intellectual property rights remain a concern with secret negotiations around the Trans-Pacific Partnership trade agreement on-going. Efforts are also underway to reform the 1986 Electronic Communications and Privacy Act (ECPA), which allows the government to access private emails older than 180 days without warrant.
PATRIOT Act provisions and the fact that US telecommunications companies comply with millions of government requests for user data have given Americans cause to self censor their electronic communications. The Cyber Intelligence Sharing and Protection Act (CISPA)[1], which passed through the House of Representatives twice but stalled in the Senate, would have compounded the threat of self censorship by granting companies greater immunity to share private user data with secretive government agencies. In June, it was revealed that the government has been secretly collecting the call records of Verizon customers under the PATRIOT Act and that the National Security Agency can access the servers of Google, Facebook, Apple, Yahoo, Microsoft and others to monitor users’ video calls, search histories, live chats, and emails. Concern is also growing over how domestic drones used for surveillance will affect individuals’ privacy] and how American web companies are in a sense privatising censorship through terms of service that restrict freedom of expression.
Artistic Freedom
The First Amendment protects artistic freedom in the US, but fear of offence still motivates censorship and self-censorship. Nudity, pornography, obscenity and religious sensitivity are among the most common reasons visual art is censored from public space in the US. Censorship typically occurs at the gallery level where art is removed in response to controversy rather than through legal mandate. Donor funding can also dictate the type and content of art displayed. A US university removed a controversial climate change sculpture without warning in May 2012 when it upset a major donor from the energy industry. High sensitivity to political correctness and concerns about marketability sometimes lead artists to self-censor what they produce, and donor funding often dictates the type and content of art that is displayed. A growing trend of online crowdsourced funding for the arts is helping to overcome this barrier for specific projects.
Controversial books are still removed from or kept out of local public libraries across the country — in March 2013, for example, the Chicago public schools authority demanded the graphic novel Persepolis be removed from its classrooms — and music is regularly stripped of violent references and profanity at stores and on radio due to private decisions or Federal Communications Commission mandates.
Increasingly strict copyright laws keep much art out of the public domain despite relatively liberal fair use provisions. Due to copyright extensions, which now extend to 70 years after the creator’s death, many creative works originally due to enter the public domain this year will not do so until 2052.
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21 Aug 13 | Digital Freedom, News and features, Vietnam
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It has been around a year since Vietnam did something to maintain the title – Enemy of the Internet – that it shares with eight others that include Uzbekistan, Iran and China. Whilst the communist nation has locked up more bloggers so far this year than throughout all of 2012 it is now revisiting last year’s widely derided, and unrealistic, internet draft decree.
The reworked Decree 72, due to come into force September 1, has caused friction as it essentially prohibits people from posting links to news stories, or sections of news articles, on social media sites such as Facebook or the equally popular, locally produced Zing Me.
Pro-democracy websites or those covering religion, politics or human rights have long been blocked. In 2010, Facebook was blocked. A leaked draft regulation requiring ISPs to block the social networking site circulated at the time. The draft was purported to have come from the government, but its veracity was not confirmed. However, access to Facebook quickly became difficult.
A lack of clear mandate from the government and a low-level block meant that people simply fiddled with the DNS settings and claimed the block was down to technical error, not political will. No one took it seriously and the social media site advertised for local staff even when the block was fully in place.
Professor Carl Thayer at the Australian Defence Force Academy in Canberra says that 2009 saw organisation of disparate groups – Catholics, anti-China factions, environmentalists and democracy activists – using Facebook as a rallying area for their shared opposition to Chinese-run bauxite mines in the Central Highlands, an ecologically and politically sensitive area.
However 72 also has something in common with an earlier blog regulation requiring citizens to stick to the personal, and not political themes. As the internet took off in the early- and mid-2000s Yahoo! chat and its blog platform Yahoo! 360 became hugely popular. By 2008 bloggers numbered in the millions. Most writers followed the government’s instructions, though there were scandals that invloved sex bloggers. The Yahoo! blogs also became useful as an alternate news and information source given the state control of media and blocks on sites related to politics, human rights or religion.
At the end of 2008 new blogging regulations limited writings to personal topics. As with Decree 72 posting links to aleady-banned sites was prohibited. The regulation was aimed only at blogs hosted within Vietnam.
“We have issued the circular aiming to create a legal framework to guide bloggers on what can they do and what they can’t do,” said Do Quy Doan, Deputy Minister of Information and Communication, told dpa at the time. The government in fact approached Yahoo! and Google for assistance.
Despite the furore at the time, not much ever came of the regulation, especially since it was designed more as a “guiding document” according to Doan and thus had limited legal use.
In 2010 part of another regulation was aimed at internet service providers and internet cafes. One point required all public computers — those in net cafes popular with teen gamers or hotel foyers — to install Green Dam, a software programme that monitors internet usage.
Unfriendly though it might have been to the idea of internet freedom, it was an ineffective piecemeal approach that quickly fell by the wayside. Those who own internet cafes, which can be found even in one horse towns and are used mostly by boy gamers, have long required background and family checks in order to open.
However Decree 72 goes further, requiring social media users to abstain from posting any news links, even to articles published by state media.
The government has made the point that this new decree is not about restricting freedom of speech but rather aimed at protecting intellectual property. Whilst news sites and blogs repost many news articles without attribution and plagiarism can be a problem in Vietnam it is not Facebook users who are the prime suspects or problem. Website Bao Moi is one of the big aggregators of news in Vietnam and it is not a social media platform.
Those flouting the new law could be more liable for fines than criminal prosecution. Bloggers are more often charged under Article 88 of the penal code, which relates to “conducting propaganda against the state” and can carry a three to 12 year sentence. Prosecuting those who share links or repost from news sites would strain the court and prison systems and fines are easier to issue, argue some.
Vietnam, which often seems to follow China’s security policy, is second only to the nation in the number of dissidents it has detained — 40 in 2013 to date, according to Human Rights Watch.
Vietnam’s government may be an Reporters Without Borders ‘Enemy of the Internet’ but the populace has embraced it, with over a third of the 90-plus million population online. Without government supporting the infrastructure for such growth it could never have happened. Engagement in the ‘knowledge era’ has always been seen as key and broadband was installed up and down the narrow country years ago.
With greater engagement in the world have come issues the government hasn’t been fully equipped to deal with and the internet is the now the main forum for criticism. Whilst the number of genuinely committed political bloggers may be small, the potential not just for critics to organise online but for citizens to share politically compromising material — such as footage of 3000 security police beating and trying to evict farmers from their village to make way for a multi-million dollar development — is huge.
Decree 72 will be largely unenforceable, outside of making the odd example, but it is more realistic than a draft decree on the internet tabled last year that would have required large companies like Google, Yahoo and Facebook to actually host servers within the country and possibly hand user information over to authorities, if asked. ISPs also would have been responsible for content posted on their sites and users would have been required to sign up for accounts with their real names.
The tabled regulation was seen by the foreign business community as a block to further economic growth and global integration. Even decree 72, which is a watered down iteration is expected to “stifle innovation”, according to the Asia Internet Coalition. What may stifle innovation more however is a full and official block of Google and Facebook. According to persistent rumours this will pave the way for local sites or the Russian-owned Coc Coc, which have servers within Vietnam and are more likely to be amenable to government strictures.
As David Brown, who writes regularly on Vietnam’s affairs, pointed out recently in the Asian Sentinel, Vietnam has plenty of ways to deter or stop the more determined political bloggers, such as imprisoning them for tax evasion as in the case of Dieu Cay. However there is the possibility that this may curtail the spread of information by ordinary citizen bloggers with no strong political commitment.
Professor Carl Thayer at the Australian Defense Force Academy in Canberra has said,
“The Decree will have a chilling effect on ordinary bloggers. It is unlikely to prevent more determined internet activists from continuing to post blogs.”
Most recently the government has been discussing policy regarding free chat apps like Viber or Whatsapp. Cell phones have long had huge market penetration and smart phones have been hugely popular in recent years also. Though the word ‘ban’ has been used in state media reports it is apparently linked to revenue losses for local teclos. There is little further information though how, why and when have not been made clear.
This article was originally published on 21 Aug 2013 at indexoncensorship.org.
21 Aug 13 | Digital Freedom, Germany, Index Reports, News and features, Politics and Society, Religion and Culture
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The situation with regards to freedom of expression in Germany is largely positive. Freedom of expression is protected by the German Constitution and basic laws. There is room for improvement, with Germany’s hate speech and libel laws being particularly severe.
Germany’s biggest limits on freedom of expression are due to its strict hate speech legislation which criminalises incitement to violence or hatred. Germany has particularly strict laws on the promotion or glorification of Nazism, or Holocaust denial with paragraph 130(3) of the German Criminal Code stipulating that those who ‘publicly or in an assembly approve, deny, or trivialise’ the Holocaust are liable to up to five years in prison or a monetary fine. Hate speech also extends to insulting segments of the population or a national, racial or religious group, or one characterised by its ethnic customs.
Germany still has strict provisions in the criminal code providing penalties for defamation of the President, insulting the Federal Republic, its states, the flag, and the national anthem. However, in 2000, the Federal Constitutional Court stated that even harsh political criticism, however unjust, does not constitute insulting the Republic. The criminal code however remains in place.
Freedom of religious expression is compromised through anti-blasphemy laws criminalising ‘offences related to religion and ideology’. Paragraph 166 of the Criminal Code prohibits defamation against ‘a church or other religious or ideological association within Germany, or their institutions or customs’. While very few people (just 10) have been convicted under the blasphemy legislation since 1969, the impact of hate speech legislation is seen more frequently, in particular in the prosecution of religious offences. In 2006, a pensioner in the state of North Rhine-Westphalia was given a 1-year suspended sentence for printing ‘The Koran, the Holy Koran’ on toilet paper, and sending it to 22 Mosques and Muslim community centres. In 2011, nine of the 18 operators of the far right online radio programme ‘Resistance Radio’ were given between 21 months and three years in prison for inciting hatred.
Germany has also seen heated debate over a widespread ban on religious symbols in public workplaces, especially affecting Muslim women who wear headscarves, which limits, as a result, freedom of religious expression. Half of Germany’s 16 states have, to various extents, banned teachers and civil servants from wearing religious symbols at work. Yet this is not applied equally to all religions, five states have made exceptions for Christian religious symbols.
Media freedom
Government and political interference in the media sector continues to raise concerns for media independence, with several incidents of interventions by politicians attempting to influence editorial policy. In 2009, chief editor of public service broadcaster ZDF, Nikolaus Brender saw his contract terminated by a board featuring several politicians from the ruling Christian Democratic Union. Reporters Without Borders labelled it a ‘blatant violation of the principle of independence of public broadcasters.’ In 2011, the editor of Bild, the country’s biggest newspaper, received a voicemail message from President Christian Wulff, who threatened ‘war’ on the tabloid which reported on unusual personal loan he received.
Media plurality is strong among regional newspapers though due to financial pressure, media plurality declined in 2009 and 2010. Germany has one of the most concentrated TV markets in Europe, with 82% of total TV advertising spend shared among just 2 main TV stations in Germany. This gives a significant amount of influence to just 2 broadcasters and the majority of Germans still receive their daily news from the television.
The legal framework for the media is generally positive with accessible public interest defences for journalists in the law of privacy and defamation. However, Germany still has criminal provisions in its defamation law, which although unused, remain in the penal code. Germany’s civil defamation law is medium to low cost in comparison with other European jurisdictions, places the burden of proof on the claimant (a protection to freedom of expression) and contains a responsible journalism defence, although not a broader public interest defence.
Digital
The digital sphere in Germany has remained relatively free with judicial oversight over content takedown, protections for online privacy and a high level of internet penetration (83% of Germans are online). Germany’s Federal Court of Justice has ruled that access to the internet is a basic right in modern society. Section 184b of the German Penal Code ‘states that it is a criminal offense to disseminate, publicly display, present or otherwise make accessible any pornographic material showing sexual activities performed by, on or in the presence of a child.’ Germany has also ratified and put into the law the Council of Europe’s Convention on Cyber Crimes from 2001. Mobile operators also signed up to a Code of Conduct in 2005, which includes a commitment to a dual system of identification and authentication to protect children from harmful content. This was reaffirmed and made binding in 2007.
There are concerns over the increased use of surveillance of online communications, especially since a new antiterrorism law took effect in 2009.
In 2011, German authorities acquired the license for a type of spyware called FinSpy, produced by the British Gamma Group. This spyware can bypass anti-virus software and can extract data from the device it is targeting. Two reports by the German Parliamentary Control Panel, from 2009 and 2010, stated that several German intelligence units had monitored emails with the amount of surveillance increasing from 7 million pieces items in 2009 to 37 million in 2010. However, Germany’s Constitutional Court ruled in February that intelligence agencies are only allowed to collect data secretly from suspects’ computers if there is evidence that human lives or state property are in danger and the authorities must get a court order before they secretly upload spyware to a suspect’s computer.
Germany’s tough hate speech legislation also chills free speech online. In January 2012, Twitter adopted a new global policy allowing the company to delete tweets if countries request it, meaning that tweets become subject to Germany’s hate speech laws. The latest Twitter transparency report states that German government agencies asked for just 2 items to be removed. In October 2012, Twitter also blocked the account of a far-right German group, Better Hannover, after a police investigation.
Artistic freedom
Artists can work relatively freely in Germany. Freedom of expression in arts is protected under the Constitution, and is largely respected, especially for satire or comedy. Yet, the freedom of expression of artists is chilled through strict hate speech and blasphemy laws.
The German authorities very rarely use blasphemy laws against artists[xiv]. However, there have been several examples of art being subjected to censorship due to religious offence. In 2012, at the exhibition ‘Caricatura VI – The Comic Art – analog, digital, international’ in Kassel, a cartoon created by cartoonist Mario Lars was removed after protests that it offended religious sensibilities.
There is persistent sensitivity around artistic works depicting the Nazi period. In April 2013, the German version of an Icelandic author’s book was ‘censored’ by its publisher, who cut 30 chapters from Hallgrímur Helga’s novel, ‘The woman at 1000°’. Key passages about Hitler, concentration camps and SS were censored to fit the German market.
