Elected police commanders must guarantee free expression

7 Oct 2011 | Uncategorized

Will the arrival of elected police commissioners politicise how officers respond to popular concerns about unpopular issues? If artistic expression sparks controversy how will newly accountable police chiefs manage the already fraught competing demands of keeping the electorate sweet, and meeting the requirements of human rights legislation?.

With the arts — some like them, some don’t.  Some walk away from things they don’t like, others exercise their right to protest. The threat to public order, potential or actual, is a core policing issue.

Thus Birmingham police prevented the screening of Penny Woolcock’s film One Day about local gangs; Gurpreet Kaur Bhatti’s play Behzti, dealing with tensions within the Sikh community, was cancelled after protests turned violent and police could not guarantee the safety of theatre staff; police upheld concerns by some members of the Somali community that music is un-Islamic and banned a musical performance in Bristol.

 

These and many other similar cases in recent years illustrate the police’s an unprecedented role as arbiters of freedom of expression in the arts. A proposed “heavyweight” independent review of policing inEnglandandWalesled by former Metropolitan Police chief Lord Stevens should address this.

Elected commissioners must manage the tension between the popular expectations that put them in post and the unpopular causes that police are sometimes expected, even required, to defend.

Yet currently there’s no clear practice. When the Belgrade Theatre Coventry premiered Bhatti’s follow-up play Behud – Beyond Belief, an imaginative response to the cancellation of Behzti, the theatre was initially asked to pay £10,000 in policing costs, the local force applying rules designed for commercial sports events, to public art.

This is problematic political, legal and cultural territory. Beyond fulfilling their core duties — to maintain law and order, to prevent and detect crime — the Human Rights Act imposes on the police a qualified obligation not to interfere with the exercise of the right to freedom of expression and protest — and a positive obligation to take appropriate steps to protect those rights.

Case law advises: “In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent throughout the Convention.”

When “taking those appropriate steps” means the police supporting an unpopular, minority interest — enabling a play to go ahead rather than sending officers out detecting crime, protecting property — it is a tough call as things stand.

With elected commissioners in place, especially when resources are limited, supporting an individual artist’s right to freedom of expression could look like a real vote loser.

After the riots in August David Cameron made the case for elected police commissioners as part of the solution “to mend[ing] our broken society…they will provide that direct accountability so you can finally get what you want when it comes to policing.”

Following up later that week in the Sunday Express newspaper, under the headline “Rights in my Sights”, Cameron talked of “scoring a clear line between right and wrong through every neighbourhood and backing it up with the full force of the law”.

By challenging the rights agenda in the name of a moral crusade, Cameron set alarm bells ringing for free expression.  The right to freedom of expression is about the rights of the minority, and artists are always the minority.

Cameron’s claim that “our reforms mean that the police are going to answer directly to the people” runs the risk of setting up misleading expectations and empowering those who can put the power of numbers behind their sense of cultural offence.

It is important that any “contract” between an elected commissioner and his or her electorate includes the understanding that the police will do things that the majority may not like, in the interests of democracy and in the interests of a vibrant and provocative culture.

This means more freedom of expression, not less, reinforced by better information about our rights and responsibilities. We need artists to be free to discuss even the most uncomfortable truths and now more than ever to speak truth to power, to call authority to account.

 

Canada: All's fair in blogs on war

20 Sep 2011 | Uncategorized

This is a guest post by Catherine Tsalikis

The advent of the world wide web has necessitated a shift in legal thinking with regards to cases of libel. In Baglow v. Smith, 2011, an Ontario Superior Court justice has issued a decision with significant effects for Canadian free speech rights pertaining to blogs and other internet forums which host political debate and discussion.

Justice Peter Annis has dismissed a defamation claim brought by Ottawa’s John Baglow, former executive with the Public Service Alliance of Canada and left-wing commentator (known in the blogosphere as  “Dr Dawg”). Baglow’s action was brought against Connie and Mark Fournier, operators of right-wing blog FreeDominion, and right-wing blogger Roger Smith (aka “Peter O’Donnell”).

In a manner common to exchanges between ideologically-opposed commentators, Baglow v. Smith arose from an escalation of online quips and jabs, during which Smith ultimately described Baglow as “one of the Taliban’s more vocal supporters”. The basis for this assertion stems from Baglow having previously argued in support of the repatriation of Omar Khadr from Guantanamo Bay to Canada, and having criticised the Canadian government for failing to uphold international law through the United Nations Convention of the Rights of the Child.

Of course, it is a long leap from Baglow’s criticism of Khadr’s treatment to the conclusion that the blogger is an adamant supporter of terrorist groups.  Nonetheless, Annis J found in his summary action that there was no issue for trial, noting that, even accepting the low threshold standard for libelous statements, “declaring someone a supporter of the Taliban is at the absolute borderline of a comment that could be said to diminish the esteem of the plaintiff in the minds of readers of a political blog where insults are regularly treated as part of the debate.”

Furthermore, Smith’s words were not intending to state a known fact, but rather his own view – opinion comments are considered to be less serious in defamation cases. Annis J concluded that “the opinion expressed by the defendant lies at the heart of the debate between the factions represented by the parties and whether the underlying facts are true or not, readers following the blog would understand the comment as being one side of the debate”.

Significantly, followers of defamation law are touting this case as groundbreaking in the realm of online free speech, gleaning that Annis J’s decision points to a different standard of defamation between statements made on blog forums and those made in other, more permanent print material. Indeed, the decision suggests that the contemporaneous nature of online debate allows recipients of written attacks to “take the sting” out of potentially libelous comments by responding quickly. Baglow could have responded to Smith’s “Taliban supporter” label by defending himself as the online community would usually expect bloggers to do in these heated, back-and-forth exchanges, but instead chose to resort to legal means.

More generally, Canada has indeed seen advancements in free speech guarantees. Following a Supreme Court decision in 2009, journalists and bloggers are now able to use the defence of “responsible communication on matters of public interest” as a defence against libel. Of course, in this case, Smith’s statement wasn’t found to be libelous in the first place, so one would perhaps be too quick to claim that this decision unequivocally means that anything — or at least more — goes in the blogosphere. Crude, vulgar and boorish commentary is a staple of many online forums, but we would have to wait for a case involving a truly libelous statement to better judge whether the Canadian standard of defamation has been lowered for cyber-speak.

In the meantime, John Baglow has announced on his blog his intention to appeal the decision to the Ontario Court of Appeal.

Catherine Tsalikis is an editorial assistant for The World Today magazine at Chatham House

Interview with a troll

14 Sep 2011 | Uncategorized

Sean Duffy has been jailed for 18 weeks for “trolling” tribute pages to suicide victims.  But was he a “true troll” or was this harassment? And is there a philosophy behind trolling? 

In this extract from an interview in Index on Censorship magazine, Whitney Phillips speaks to troll “Paulie Socash” about tribute sites, free expression and where trolls draw the line

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USA: Stalker’s free speech defence rejected

13 Sep 2011 | Index Index, minipost

Oregon’s Supreme Court has rejected an appeal made by a convicted stalker. John Norman Ryan began stalking a woman in 2005, eventually she took out a stalking protective order which forbade Ryan from making any contact. Ryan breached the order and was convicted by the courts. He appealed on the grounds that as the communication was not violent, he was expressing his First Amendment right to free speech. The judges ruled against him.