Elif Shafak is an award-winning Turkish novelist and advocate for free expression. Her latest novel 10 Minutes 38 Seconds in This Strange World has been long-listed for the Booker Prize.
Kerry Hudson
Novelist
The award-winning novelist Kerry Hudson’s memoir Lowborn captured the imagination of the British public this year because of her vivid description of her dysfunctional family and growing up in poverty in the UK.
Chen Xiwo
Writer
Chen Xiwo is a censored Chinese author, most famous for his collection of stories The Book of Sins which was published in English in 2014. His controversial novella I Love My Mum remains banned in China
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It all started with a conversation I had with a couple of journalists working in tough countries. We were talking about what kind of protection they still had, despite laws that could be used to crack down on their kind of journalism – journalism that is critical of governments.
They said: “When the independence of the justice system is gone then that is it. It’s all over.”
And they felt that while there were still lawyers prepared to stand with them to defend cases, and judges who were not in the pay of – or bowed by – government pressure, there was still hope. Belief in the rule of law, and its wire-like strength, really mattered.
These are people who keep on writing tough stories that could get them in trouble with the people in power when all around them are telling them it might be safer if they were to shut up.
This sliver of optimism means a great deal to journalists, activists, opposition politicians and artists who work in countries where the climate is very strongly in favour of silence. It means they feel like someone else is still there for them.
I started talking to journalists, writers and activists in other places around the world, and I realised that although many of them hadn’t articulated this thought, when I mentioned it they said: “Yes, yes, that’s right. That makes a real difference to us.”
So why – and how – do we defend the system of legal independence and make more people aware of its value? It’s not something you hear being discussed in the local bar or café, after all.
Right now, we need to make a wider public argument about why we all need to stand up for the right to an independent justice system.
[/vc_column_text][vc_row_inner][vc_column_inner width=”1/4″][vc_icon icon_fontawesome=”fa fa-quote-left” color=”custom” size=”xl” align=”right” custom_color=”#dd3333″][/vc_column_inner][vc_column_inner width=”3/4″][vc_custom_heading text=”On an ordinary day, most of us are not in court or fighting a legal action, so it is only when we do, or we know someone who is, that we might realise that something important has been eroded” font_container=”tag:h3|text_align:left” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][/vc_column_inner][/vc_row_inner][vc_column_text]
We need to do it because it is at the heart of any free country, protecting our freedom to speak, think, debate, paint, draw and put on plays that produce unexpected and challenging thoughts. The wider public is not thinking “hey, yes, I worry that the courts are run down, and that criminal lawyers are in short supply”, or “If I took a case to trial and won my case I can no longer claim my lawyer’s fees back from the court”. On an ordinary day, most of us are not in court or fighting a legal action, so it is only when we are, or when we know someone who is, that we might realise that something important has been eroded.
Our rights are slowly, piece by piece, being undermined when our ability to access courts is severely limited, when judges feel too close to presidents or prime ministers, and when lawyers get locked up for taking a case that a national government would rather was not heard.
All those things are happening in parts of the world right now.
In China, hundreds of lawyers are in prison; in England and Wales since 2014 it has become more risky financially for most ordinary people to take a case to court as those who win a case no longer have their court fees paid automatically; and in Brazil the new president, Jair Bolsonaro, has just appointed a judge who was very much part of his election campaign to a newly invented super-ministerial role.
Helpfully, there are some factors that are deeply embedded in many countries’ legal histories and cultures that make it more difficult for authoritarian leaders to close the necessary space between the government and the justice system.
Many people who go into law, particularly human-rights law, do so with a vision of helping those who are fighting the system and have few powerful friends. Others hate being pressurised. And in many countries there are elements of the legal system that give sustenance to those who defend the independence of the judiciary as a vital principle.
Nelson Mandela’s lawyer, Sir Sydney Kentridge QC, has made the point that judges recruited from an independent bar would never entirely lose their independence, even when the system pressurised them to do so.
He pointed out that South African lawyers who had defended black men accused of murder in front of all-white juries during the apartheid period were not easily going to lose their commitment to stand up against the powerful.
Sir Sydney did, however, also argue that “in the absence of an entrenched bill of rights, the judiciary is a poor bulwark against a determined and immoderate government” in a lecture printed in Free Country, a book of his speeches.
So it turned out that this was the right time to think about a special report on this theme of the value of independent justice, because in lots of countries this independence is under bombardment.
It’s not that judges and lawyers haven’t always come under pressure. In his book The Rule of Law, Lord Bingham, a former lord chief justice of England and Wales, mentions a relevant historical example. When Earl Warren, the US chief justice, was sitting on the now famous Brown v Board of Education case in 1954, he was invited to dinner with President Dwight Eisenhower. Eisenhower sat next to him at dinner and the lawyer for the segregationists sat on his other side. According to Warren, the president went to great lengths to promote the case for the segregationists, and to say what a great man their lawyer was. Despite this, Warren went on to give the important judgement in favour of Brown that meant that racial segregation in public schools became illegal.
Those in power have always tried to influence judges to lean the way they would prefer, but they should not have weapons to punish those who don’t do so.
In China, hundreds of lawyers who stood up to defend human-rights cases have been charged with the crime of “subverting state power” and imprisoned. When the wife of one of the lawyers calls on others to support her husband, her cries go largely unheard because people are worried about the consequences.
This, as Karoline Kan writes on p23, is a country where the Chinese Communist Party has control of the executive, judicial and legislative branches of government, and where calls for political reform, or separation of powers, can be seen as threats to stability.
As we go to press we are close to the 30th anniversary of the Tiananmen Square killings, when thousands of protesters all over China, from all kinds of backgrounds, had felt passionately that their country was ready for change – for democracy, transparency and separation of powers.
Unfortunately, that tide was turned back by China’s government in 1989, and today we are, once more, seeing China’s government tightening restrictions even further against those who dare to criticise them.
Last year, the Hungarian parliament passed a law allowing the creation of administrative courts to take cases involving taxation and election out of the main legal system (see p34). Critics saw this as eroding the gap between the executive and the justice system. But then, at the end of May 2019, there was a U-turn, and it was announced that the courts were no longer going ahead. It is believed that Fidesz, the governing party in Hungary, was under pressure fromits grouping in the European Parliament, the European People’s Party.
If it were kicked out of the EPP, Hungary would have in all likelihood lost significant funding, and it is believed there was also pressure from the European Parliament to protect the rule of law in its member states.
But while this was seen as a victory by some, others warned things could always reverse quickly.
Overall the world is fortunate to have many lawyers who feel strongly about freedom of expression, and the independence of any justice system.
Barrister Jonathan Price, of Doughty Street Chambers, in London, is part of the team advising the family of murdered journalist Daphne Caruana Galizia over a case against the Maltese government for its failure to hold an independent inquiry into her death.
He explained why the work of his colleagues was particularly important, saying: “The law can be complex and expensive, and unfortunately the laws of defamation, privacy and data protection have become so complex that they are more or less inoperable in the hands of the untrained.”
Specialist lawyers who were willing to take on cases had become a necessary part of the rule of law, he said – a view shared by human-rights barrister David Mitchell, of Ely Place Chambers, in London.
“The rule of law levels the playing field between the powerful and [the] powerless,” he said. “It’s important that lawyers work to preserve this level.”
Finally, another thought from Sir Sydney that is pertinent to how the journalists I mentioned at the beginning of this article keep going against the odds: “It is not necessary to hope in order to work, and it is not necessary to succeed in order to hope in order to work, and it is not necessary to succeed in order to persevere.”
Rachael Jolley is editor of Index on Censorship. She tweets @londoninsider. This article is part of the latest edition of Index on Censorship magazine, with its special report on local news
Index on Censorship’s spring 2019 issue is entitled Is this all the local news? What happens if local journalism no longer holds power to account?
Look out for the new edition in bookshops, and don’t miss our Index on Censorship podcast, with special guests, on Soundcloud.
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Xinran is a best-selling British-Chinese author and advocate for women’s issues. She was the first woman to host a phone-in program called ‘Words on the Night Breeze’ from 1989 to 1997.
Claudia Piñeiro
Novelist
Claudia Piñeiro is a best-selling Argentinian novelist and screenwriter. In 1992 she won the prestigious Pléyade journalism award. Her books have been translated into four different languages.
Robert Harris
Author
Robert Harris is a best-selling English novelist. He is a former BBC television reporter. Though he began his career in non-fiction, he has found success through his historical fiction.
Parliament must be fully involved in shaping the government’s proposals for online regulation as the proposals have the potential to cause large-scale impacts on freedom of expression and other rights.
The proposed duty of care needs to be limited and defined in a way that addresses the risk that it will create a strong incentive for companies and others to censor legal content, especially if combined with fines and personal liability for senior managers.
It is important to widen the focus from harms and what individual users do online to the structural and systemic issues in the architecture of the online world. For example, much greater transparency is needed about how algorithms influence what a user sees.
The government is aiming to work with other countries to build international consensus behind the proposals in the white paper. This makes it particularly important that the UK’s plans for online regulation meet international human rights standards. Parliament should ensure that the proposals are scrutinised for compatibility with the UK’s international obligations.
More scrutiny is needed regarding the implications of the proposals for media freedom, as “harmful” news stories risk being caught.
Introduction
The proposals in the government’s online harms white paper risk damaging freedom of expression in the UK, and abroad if other countries follow the UK’s example.
A proposed new statutory duty of care to tackle online “harms” combined with substantial fines and possibly even personal criminal liability for senior managers would create a strong incentive for companies to remove content.
The “harms” are not clearly defined but include activities and materials that are legal.
Even the smallest companies and non-profit organisations are covered, as are public discussion forums and file sharing sites.
The proposals come less than two months after the widely criticised Counter-Terrorism and Border Security Act 2019. The act contains severe limitations on freedom of expression and access to information online (see Index report for more information).
The duty of care: a strong incentive to censor online content
The proposed new statutory duty of care to tackle online harms, combined with the possibility of substantial fines and possibly even personal criminal liability for senior managers, risks creating a strong incentive to restrict and remove online content.
Will Perrin and Lorna Woods, who have developed the online duty of care concept, envisage that the duty will be implemented by applying the “precautionary principle” which would allow a future regulator to “act on emerging evidence”.
Guidance by the UK Interdepartmental Liaison Group on Risk Assessment (UK-ILGRA) states:
“The purpose of the Precautionary Principle is to create an impetus to take a decision notwithstanding scientific uncertainty about the nature and extent of the risk, i.e. to avoid ‘paralysis by analysis’ by removing excuses for inaction on the grounds of scientific uncertainty.”
The guidance makes sense when addressing issues such as environmental pollution, but applying it in a context where freedom of expression is at stake risks legitimising censorship – a very dangerous step to take.
Not just large companies
The duty of care would cover companies of all sizes, social media companies, public discussion forums, retailers that allow users to review products online, non-profit organisations (for example, Index on Censorship), file sharing sites and cloud hosting providers. A blog and comments would be included, as would shared Google documents.
The proposed new regulator is supposed to take a “proportionate” approach, which would take into account companies’ size and capacity, but it is unclear what this would mean in practice.
Censoring legal “harms”
The white paper lists a wide range of harms, for example, terrorist content, extremist content, child sexual exploitation, organised immigration crime, modern slavery, content illegally uploaded from prisons, cyberbullying, disinformation, coercive behaviour, intimidation, under 18s using dating apps and excessive screen time.
The harms are divided into three groups: harms with a clear definition; harms with a less clear definition; and underage exposure to legal content. Activities and materials that are not illegal are explicitly included. This would create a double standard, where activities and materials that are legal offline would effectively become illegal online.
The focus on the catch-all term of “harms” tends to oversimplify the issues. For example, the recent study by Ofcom and the Information Commissioner’s Office Online Nation found that 61% of adults had a potentially harmful experience online in the last 12 months. However, this included “mildly annoying” experiences. Not all harms need a legislative response.
A new regulator
The white paper proposes the establishment of an independent regulator for online safety, which could be a new or existing body. It mentions the possibility of an existing regulator, possibly Ofcom, taking on the role for an interim period to allow time to establish a new regulatory body.
The future regulator would have a daunting task. It would include defining what companies (and presumably also others covered by the proposed duty of care) would need to do to fulfil the duty of care, establishing a “transparency, trust and accountability framework” to assess compliance and taking enforcement action as needed.
The regulator would be expected to develop codes of practice setting out in detail what companies need to do to fulfil the duty of care. If a company chose not to follow a particular code it would need to justify how its own approach meets the same standard as the code. The government would have the power to direct the regulator in relation to codes of practice on terrorist content and child sexual exploitation and abuse.
Enforcement
The new enforcement powers outlined in the white paper will include substantial fines. The government is inviting consultation responses on a list of possible further enforcement measures. These include disruption of business activities (for example, forcing third-party companies to withdraw services), ISP blocking (making a platform inaccessible from the UK) and creating a new liability for individual senior managers, which could involve personal liability for civil fines or could even extend to criminal liability.
Undermining media freedom
The proposals in the white paper pose a serious risk to media freedom. Culture Secretary Jeremy Wright has written to the Society of Editors in response to concerns, but many remain unconvinced.
As noted the proposed duty of care would cover a very broad range of “harms”, including disinformation and violent content. In combination with fines and potentially even personal criminal liability, this would create a strong incentive for platforms to remove content proactively, including news that might be considered “harmful”.
Index has filed an official alert about the threat to media freedom with the Council of Europe’s Platform to promote the protection of journalism and safety of journalists. Index and the Association of European Journalists (AEJ) have made a statement about the lack of detail in the UK’s reply to the alert. At the time of writing the UK has not provided a more detailed reply.
Censorship and monitoring
The European Union’s e-commerce directive is the basis for the current liability rules related to online content. The directive shields online platforms from liability for illegal content that users upload unless the platform is aware of the content. The directive also prohibits general monitoring of what people upload or transmit.
The white paper states that the government’s aim is to increase this responsibility and that the government will introduce specific monitoring requirements for some categories of illegal content. This gets close to dangerous censorship territory and it is doubtful if it could be compatible with the e-commerce directive.
Restrictions on freedom of expression and access to information are extremely serious measures and should be backed by strong evidence that they are necessary and will serve an important purpose. Under international law freedom of expression can only be restricted in certain limited circumstances for specific reasons. It is far from clear that the proposals set out in the white paper would meet international standards.
Freedom of expression – not a high priority
The white paper gives far too little attention to freedom of expression. The proposed regulator would have a specific legal obligation to pay due regard to innovation. When it comes to freedom of expression the paper only refers to an obligation to protect users’ rights “particularly rights to privacy and freedom of expression”.
It is surprising and disappointing that the white paper, which sets out measures with far-reaching potential to interfere with freedom of expression, does not contain a strong and unambiguous commitment to safeguarding this right.
Contact: Joy Hyvarinen, Head of Advocacy, [email protected][/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1560957390488-02865151-710e-1″ taxonomies=”4883″][/vc_column][/vc_row]
It all started with a conversation I had with a couple of journalists working in tough countries. We were talking about what kind of protection they still had, despite laws that could be used to crack down on their kind of journalism 
