Havel died on 17 December this year.

The following sketch is Havel’s first literary work written since leaving prison. Its world premiere took place at the end of November 1983 in Stockholm and is published here by permission of Rowohlt Theater-Verlag, Reinbek. The Stockholm performance was introduced by Vaclav Havel himself, the tape-recorded message he sent from Prague being played to the audience. The message appears on page 15.

Dramatis personae:

XIBOY
KING (a trustie)
FIRST PRISONER
SECOND PRISONER
THIRD PRISONER

(As the curtain rises, we see a door, left, with the FIRST, SECOND, and THIRD PRISONER crowding the doorway, KING in front. All four have shaven heads and a variety of tattoos on their arms and torsos — KING most of all. They are dressed in prison uniforms and are gazing intently at XIBOY. On the opposite side of the stage there is a tier of three iron bunks; XIBOY is sitting on the top one, like the others in prison garb and with shaven head but no tattoos. XIBOY is a newcomer and he looks with some apprehension at the group in the doorway. A long, tense silence…)

KING (to XIBOY) I hear you lit a fag after slop – out…

(Short pause)

FIRST PRISONER (to KING) ‘e did — I saw ‘im.

KING (to SECOND PRISONER) That right?

SECOND PRISONER Sure, that’s right.

KING (to XIBOY,) Don’t you know when we fall out for breakfast?

(Short pause)

FIRST PRISONER (to KING) Sure, he knows…The minutes after slop-out.

KING (to SECOND PRISONER.) Does ‘e know?

SECOND PRISONER Sure he knows! They tell all the new boys, don’t they…

KING (to XIBOY) Now listen ‘ere, friend. We have ten minutes between slop-out and breakfast. In that time we’ve all gotta get dressed, those as wants can wash or ‘ave a piss, there’s no objection to that, you understand, everyone’s got a perfect right to do it, if they wanna, you can even start making your bed so we don’t all start at once and get in each other’s way. And we open the windows to get rid of all the farts first thing. That’s the custom ‘ere, that’s the way it’s done and always ‘as been. Then we all grab our caps and food bowls and wait for the order to fall in. And when they yell fall in’ we gotta look sharp and line up outside the cell. If we don’t get out there quick enough, they send us back and we gotta wait our turn again. So we don’t want anybody fartarsing around holding things up, looking for his things or tipping a fagend or anything like that — and the rest of us get in the shit on ‘is account. Understand? Because of one lousy slowcoach we ain’t all gonna go back and ‘ang around waiting. I ‘ope that’s clear. And if anyone thinks it ain’t, we’ll soon put ‘im right!

FIRST PRISONER (to KING) It’s clear, all right, and everyone does it just like you said.

SECOND PRISONER (to XIBOY) That’s right — and if some cunt thinks ‘e can mess us about, ‘e’ll do it just once and never again . ..

KING(to XIBOY) So, as I said, there’s a hell of a lot to do between slop-out and breakfast. No time for fartarsing around. Much less for smoking. That’s not the way we do things ‘ere. Now, after breakfast, that’s something else again, then you can light up if you’ve got any fags, that is. Then there’s time and nobody gives a shit. But not before breakfast. That’s how it’s always been in this pad, and it’s going to stay that way. Nobody’s gonna tell me they can’t wait a lousy twenty minutes for a smoke. That ain’t asking too much, is it? (to SECOND PRISONER) Am I right?

SECOND PRISONER Sure you are.

FIRST PRISONER (to KING) We can wait.

KING (to XIBOX) So, from now on remember — no smoking before breakfast…

FIRST PRISONER Especially as we’re trying to air the fucking place…

KING (to XIBOY) Yeah, that’s right. And some people just can’t stand the smell of smoke first thing in the morning. They don’t like it, their lungs don’t like it, they can’t stand it. As is their right. Is that clear?

(XIBOY says nothing, looks embarrassed and shrugs)

SECOND PRISONER (shouts at XIBOY) Didn’t you hear what ‘e said? (XIBOY says nothing, looks embarrassed, shrugs) Anyone we catch smoking after slopout gets a fistful, see?

KING (to XIBOY) What they do in other cells, that’s their business. But nobody smokes in this one after slop-out. That goes for everybody, ‘specially for new boys like you. That’s all I wanted to say to you, friend. And not just for myself but for all of us. (to SECOND PRISONER) Right?

SECOND PRISONER Right.

FIRST PRISONER (to KING) That’s what we all say — right…

KING (to XIBOY; Everybody saw you smoking first thing, and everybody yakked about it. But I told ‘em: ‘e’s a new boy, doesn’t know the ropes yet. And so they stopped yakking. So you’re OK for today. But next time just remember we don’t hold with nobody trying to be clever and going it alone. Not on your life . ..

FIRST PRISONER (to KING) As long as I been ‘ere, nobody ever had the nerve to light a fag before breakfast.

KING (to XIBOY) So, as I said, you got away with it this time, but see it don’t ‘appen no more. Is that clear?

(XIBOY looks embarrassed and shrugs)

SECOND PRISONER (yells at XIBOY) What’re you gawping at, you cunt? King asked you a question!

(Silence)

KING (to XIBOY) We’re trying to be nice to you, see? So we’ll skip it this once—but now you know and kindly keep your nose clean.

(Longer silence)

Oh, and while we’re on the subject … From tomorrow, you’ll make your bed exactly like all the rest of us. If the others can do it, so can you. We don’t want to lose a point every day just because some stupid bastard doesn’t know how to make his bed properly, do we? We don’t want the whole lot of us to get it in the neck on account of one miserable rookie what doesn’t know how to make his bed. So you’d better hurry up and learn, ‘cos if tomorrow your bed isn’t just like everybody else’s, we’ll make you practise all evening.

SECOND PRISONER (to XIBOY,) We’ll make you do it ten times in a row, see if we don’t.

KING (to XIBOY,) Blanket’s gotta be two inches from the edge on both sides, the sheet neatly folded over, and so on and so forth. The boys’ll show you how it’s done.

FIRST PRISONER (to KING,) I’ll show ‘im . . .

KING (to XIBOY,) Is that clear?

(Silence)

Everybody in ‘ere gets the ‘ang of it sooner or later, so no reason why you shouldn’t get the ‘ang of it. Understand?

(Silence)

SECOND PRISONER (to XIBOY,) Bloody hell! Cat got your tongue, you bastard? Speak up when King asks you something!

FIRST PRISONER (to KING,) What ‘s the matter with ‘im? Stupid idiot!

KING (to XIBOY) Did you clean the washbasin?

(Silence)

Your turn to scrub and clean this week, so you’d better look smart! And if you think you’re just going to tickle the floor with the brush and that’s it, you’re bloody well mistaken. You get down and scrub the floor under the bunks, ‘specially in the corners by the wall —the screws shine their torches down there. You dust everywhere, and the washbasin’s gotta be washed, wiped dry and shined — and the same goes for the kaazie. Today it’s a mess, so you can thank your lucky stars we haven’t had the screws round ‘ere. They’d ‘ave shown you a thing or two. Tonight, before inspection, I’ll come and look personal like. We’re all in the same boat ‘ere, nobody gets any privileges, ‘specially not a rookie whose fag-end is still burning outside the prison gate! Pankrac Prison, Prague

SECOND PRISONER (yells at XIBOY) So why don’t you come down off of there, you cunt, when King’s talking to you!

(XIBOY remains sitting on his bunk, smiling in embarrassment. Tense silence, SECOND PRISONER is about to lunge at XIBOY and drag him down but KING stops him)

KING (to SECOND PRISONER,) Wait a sec!

(Silence)

(to XIBOY) Now look ‘ere, me lad! If you’ve got it in yer ‘ead that you’re going to do as you bloody well please ‘ere, or maybe play at being King, you’ve got another think coming! We know how to deal with the likes of you. Understand?

(Silence)

FIRST PRISONER (to KING) What a stubborn bastard!

SECOND PRISONER (to XIBOY,) Come down off that bloody bunk, and be quick about it!

(Silence — XIBOY doesn’t move)

SECOND PRISONER (to XIBOY,) Well…?!

(Silence — XIBOY doesn’t move)

KING (to XIBOY,) Now then, you, I don’t take kindly to them as tries to make a monkey out of me. So don’t get any ideas!

FIRST PRISONER (to XIBOY,) Down you come this minute and apologise to King!

(Silence — XIBOY doesn’t move, just sits there smiling in embarrassment)

SECOND PRISONER (yells at XIBOY.) You fucking mother-fucker!’

(SECOND PRISONER leaps forward and catches XIBOY by one leg, pulling him down, XIBOY falls on the floor, SECOND PRISONER kicks him and returns to KING’S side, XIBOY rises slowly, looks at the others, puzzled. Silence.)

THIRD PRISONER (softly) ‘ere, lads…

(Silence — they all gaze at XIBOY)

KING (without turning to THIRD PRISONER,) What?

(Silence — they all gaze at XIBOY)

THIRD PRISONER (softly) Know what? He’s some kind of a bloody foreigner…

(All three look questioningly at KING. Tense silence)

KING (after a pause, softly) Well, that’s his bloody funeral…

KING starts out menacingly towards XIBOY, followed by FIRST, SECOND and THIRD PRISONER. They slowly edge closer to him. Curtain falls)

(CURTAIN)

Translated by George Theiner. This play originally appeared in Index on Censorship magazine in 1984 Volume 13: Issue 13

Václav Havel died on 17 December this year.

On bravery

I sometimes wonder if I’m mature enough to go to prison. It frightens me. We should all come to terms with this problem once we reach adulthood, and either behave in such a way as not to have to fear imprisonment or consider what is worth such a risk. It is hard to be locked up for something that will have ceased to excite anyone even before your sentence is up. That, I think, is what happened to the people who were imprisoned for the pre-election leaflets in 1972. And that is why I was greatly moved and encouraged by Jifi Miiller’s message from prison in which he advised people to act in an effective way and to avoid arrest.

It is one thing if they imprison someone who knows exactly what he is doing and why, and quite another when a young, immature person lands in jail, more or less by accident. I was amazed, for instance, by the fate of Karel Pecka (a leading dissident writer who made his literary debut in the sixties), who frittered his youth away in the uranium mines. For someone to be able to pick up the pieces of such a wrecked life and to give it a meaning and value I believe requires a kind of courage he surely did not possess before his prison experience. A normal human being, even a relatively calm one, if he opens a chess game badly, feels like sweeping the board clean and starting again. You can do that in a game of chess, but you can’t do it in life.

Just to risk imprisonment is not in itself any kind of achievement, nor is it at all a good thing if during a dispute one side provokes the other to take a step which cannot be revoked without loss of honour, prestige, or authority. To do that can only make the situation worse. A man who suppresses the opinions of others is merely a censor; a censor, whom resistance to censorship leads to imprison people, becomes a dictator; the dictator who, in suppressing a protest demonstration, gives orders to fire at the crowd is a murderer. With the censor we could negotiate, and there was always a possibility that, as a result, his office would in time be abolished, and the censor himself would quietly accept some other desk job. In a murderer we have an enemy who cannot agree to any negotiation if he is not to end on the gallows.

However, where are the decent limits to such reflections?

No one can give a satisfactory reply to the question whether Charter 77 has made things better or worse, and how things would look today without it. Let us give up seeking such an answer, and let us add that the moral motives for our actions are only roughly parallel with political ones, the strongest impulses deriving from our character rather than our views. Charter 77 is today different from what it was in 1977. We have all had our share of trouble. I sometimes hear complaints that it is no longer as nice as it used to be. To this I would say that anyone who doesn’t agree with what those who remain active and committed are doing, should withdraw quietly and undemonstratively and not hamper the work of those who are left. Each and every one of us can try and find methods which suit him best. If some team of people under threat decides to re-define its internal structure and tighten its rules, it can hardly expect to be understood by the public at large. While, on the one hand, a free man is put off by demands for absolute unity, on the other, the majority of sensible people tend to regard the increasingly more heroic actions of an increasingly diminishing platoon of fighters as more and more their own personal affair. I mean this generally, as it applies to all shades of opinion.

Most people are well aware of their own limits and refrain from actions whose consequences they would be unable to bear. Anyone who, in a cool season, persuades people to take on more, should not be surprised when they break. An instinctive fear of hunger prevents a healthy and sensible person from feeling sympathy for someone who, in his own and the general cause, goes on hunger-strike. A matter of life and death? The sensible person gets cold feet and tries to find a way of dissociating himself from it at least a little. Psychologists and politicians cannot expect heroism in everyday life except when the whole environment is literally ionised by radiation from some powerful source. Heroic deeds are alien to everyday life. They are special events, which ought to be reported. They flourish in exceptional situations, but these must not be of long duration. A mass psychosis of heroism is a fine thing, provided there are in the vicinity some sober minds who have access to information and contacts and who know what’s to be done afterwards.

I make a distinction between heroism and the integrity of the ordinary man. The ordinary man has a reserve of good habits and virtues, possesses his own integrity and knows how to protect it from erosion. Just as he doesn’t like to see anyone acting in too dangerously defiant a manner, he also likes to reassure himself that quiet, honest toil is the best, even if it isn’t particularly well rewarded, and that decent behaviour will find a decent response. Today, the main brunt of the attack is not directed so much at heroes as against what we used to consider the norm of work, behaviour and relationships. I would go so far as to say that the heroes are being given only measured doses of repression, which the regime feels duty bound to administer. It is reluctant to do this because it doesn’t want to give publicity to any heroes. The war should remain anonymous, without any recognisable faces or data. That is why the real explosive charges are scattered among the crowd, the intention being not to destroy anyone but rather to cause him to change his norms. A kind of neutron bomb: undamaged empty figures carry on walking to and from work.

We sometimes argue whether things are worse now than in the fifties, or if they are better. We can find sufficient evidence for both contentions. A truthful assessment will depend on how much we can gain from our present situation to benefit the future. The fifties had their revolutionary cruelty as well as their selfless enthusiasm. Certain sections of the population suffered grievously. Today there is no sign of any enthusiasm and, except: in the case of a few excesses, no particular cruelty. Also, it no longer matters to which group anyone belongs. Violence has become humanised. The total surveillance of the entire population has been spread more gently over everyone and everything, it is devoid of the former spasms of hate. Is this better or worse? It is an attack on the very concept of normal life. I consider it more dangerous than in the fifties, yet we find it easier to live with.

Under these circumstances, every bit of honest work, every expression of incorruptibility, every gesture of goodwill, every deviation from cold routine, and every step or glance without a mask has the value of a heroic deed. Our opponent, in particular, should find us ready – not to die for some rotten sacred cause, but to understand its positive aspects and to hold on to them. While heroic deeds frighten people, giving them the truthful excuse that they are not made for them, everyone can bravely adhere to the norm of good bshaviour at the price of acceptable sacrifice, and everyone knows it. Prague, 6 December 1978 – on the occasion of Karel Pecka’s 50th birthday.

Dear Mr. Ludvik

You say: either one should act so as not to have to fear prison, or else consider whether it’s worth his while to risk imprisonment.

I agree: if one intends to burgle a supermarket, one has to consider whether the likely proceeds make the risk worthwhile.

But people aren’t locked up only for burgling supermarkets. They are locked up, for instance, for writing novels. A certain Vaculik was not locked up for his Guinea-pigs, but a certain Grusa was locked up for his Questionnaire.

According to you, Grusa evidently acted carelessly in writing The Questionnaire, since it is stupid to go to prison. Vaculik was more prudent in writing only The Guinea-pigs. You see, I trust, how absurd this is. After all, you know better than anyone that Grusa didn’t have to go inside for The Questionnaire but Vaculik might have gone inside for The Guinea-pigs. You know that the decision

whether to lock up Grusa or Vaculik has nothing at all to do with which one of them was better able to assess the risks, it is purely and simply a cold-blooded calculation on the part of the powersthat-be. Sometimes it is more tactical to arrest Grusa and thus try and intimidate Vaculik, at other times it might be better to arrest Vaculik and thus try and intimidate Grusa.

Grusa’s novel is a good one, and so to that extent the two months inside were worth it. But what if it had not been a good novel? Or what if he had spent two years behind bars instead of two months? Then no doubt it would be incumbent on us to pity Grusa, as we pitied those naive souls who, in the early seventies, thought they could get away with reminding voters of their constitutional right not to vote.

But don’t you remember that you and me both still have the 1969 indictment hanging over us? And surely you cannot be unaware that it could easily have been the two of us who spent all those years in jail instead of Sabata and Hiibl? Do you think that the text we both signed was worth it?

In a sense, nothing is worth it. Not leaflets, nor attendance at a ball, nor the writing of a novel. And what about sending the manuscripts of Czech authors to emigre magazines! Was it worth it where Lederer was concerned? Good job he is one of those cunning heroes who benefit from ‘measured doses of repression’ – after all, he might have got not three years but ten. The law under which they sentenced him allows for that.

Was it worth it for Messrs Simsa and Sabata that they behaved like men when humiliated? Of course not; all they had to do was to bend and people would at once have understood them better and they need not have found themselves among those repugnant heroes. And what about the Plastic

People – had they given concerts with Helena Vondrackova they would have taken their place among decent people within the limits of the law and needn’t have come a cropper.

I don’t know what you had in mind when you wrote your feuilleton. All I know is what effect it has. Divested of its stylistic elegance, it can be summed up like this: a decent bloke doesn’t pretend to be a hero and doesn’t insist on getting himself arrested. Because to be a hero is somehow anti-social; this isn’t the honest, everyday work which decent people respect and which keeps society going; people recoil from it and are frightened by it. Furthermore, heroes are dangerous because they only serve to make matters worse. After all, the secret police aren’t such bad chaps provided they are treated decently.

Why then provoke them needlessly by writing novels, making music, sending books abroad? This literally forces those decent chaps to beat up women and drag one’s friends into the woods and there kick them in the balls. We must have more regard for their prestige and stop invoking all these international treaties, we must no longer insolently copy the writings of people like Cerny, Vaculik, Havel, and others like them – no doubt you know that for this reason three boys of the same age as your sons are at present in a Brno jail. More heroes, who are only helping to make matters worse.

But now without exaggeration: none of us can know in advance how much we can bear, nor what we may be made to bear. That can only be known by your calculating model of a sensible, decent man within the limits of the law. None of us decided in advance that we wanted to go to jail, indeed none of us made a conscious decision that he or she wanted to become a dissident. We became dissidents without actually knowing how, and we found ourselves behind bars without really knowing how. We simply did certain things which we had to do and which it seemed proper to do: nothing more, nor less.

Happy are those who are decent and haven’t landed in jail. But why should those who had that misfortune be set apart from the others? Is it not usually quite arbitrary who lands in it and who doesn’t? Those whom you call heroes, suggesting that they are overdoing things, didn’t get locked up for their ambition to become martyrs – they were locked up because of the indecency of those who put people in jail for writing novels or for playing tapes with the music of unofficial musicians.

No one wants to go to jail. If people were to take your advice and calculate the risks involved in the fashion of a thief deciding whether to burgle a supermarket, there would for a long time now have been in our country not a single expression of solidarity with an unjustly persecuted person, not a single truthful novel or free song, not even a single feuilleton. For how can we be sure that tomorrow they won’t start putting people away for writing feuilletons?

Maybe all you meant to say was that the quiet and inconspicuous humiliation of thousands of anonymous people was worse than the occasional arrest of a well-known dissident. Undoubtedly. But the question surely is, why did they arrest the dissident? Mainly, if you think about it, just because he had tried to tell the truth about that quiet and inconspicuous humiliation of thousands of anonymous people.

Some of us have been experiencing this harsh and depressing confrontation with the secret police for two years, others for ten, still others all their life. Nobody can be said to enjoy it. None of us knows in advance how long he can stand it. And each and every one of us has the right, when he feels he can’t stand it any longer, to draw back, not to do certain things any more, to take; a rest, or even to emigrate. All this is understandable, normal, human – and I’d be the last to hold it against anyone.

What I do hold against people, though, is when they don’t tell the truth. And you – forgive me – this time are not telling the truth.

Yours

Václav Havel

This article originally appeared in Index on Censorship magazine in 1979 Issue 8: Volume 39

We became dissidents without actually knowing how, and we found ourselves behind bars without really knowing how. We simply did certain things we had to do and that it seemed propert to do: nothing more, nor less. Happy are those who are decent and haven’t landed in jail. But why should those who had that misfortune be set apart from the others? Is it not usually quite arbitrary who lands in it and who doesn’t? Those whom you call heroes, suggesting that they are overdoing things, didn’t get locked up for their ambition to become martyrs — they were locked up because of the indecency of those who put people in jail for writing novels or for playing tapes with the music of unofficial musicians.

Havel with Graham Greene at the Prague Writers' Club, 1969

No one wants to go to jail. If people were to take your advice and calculate the risks involved in the fashion of a thief deciding whether to burgle ad supermarket, there would, for long time now, have been in our country not a single expression of solidarity with an unjustly persecuted person, not a single truthful novel or free song, not even a single feuilleton. For how can we be sure that tomorrow that won’t start putting people away for single feuilletons?

Maybe all you meant to say was that the quiet and inconspicuous humiliation of thousands of anonymous people was worse than the occasional arrest of a well-known dissident. Undoubtedly. But the question surely is, why did they arrest the dissident? Mainly, if you think about it, just because he had tried to tell the truth about that quiet and inconspicuous humiliation of thousands of anonymous people.

Djamshid Karimov, nephew of Uzbek president Islam Karimov, is an outspoken critic of the government, known for reporting on socio-political issues. He worked as a freelance journalist for the Institute for War and Peace Reporting, and contributed to independent newspapers and online publications under the pseudonym Andrei Nazarov. After reporting on the Andijan massacre in May 2005, during a period when his uncle systematically sought to silence all independent voices of protest, Karimov and his family were subjected to intense police surveillance.

In August 2006, after applying for an exit visa to attend a journalism seminar in Kyrgyzstan, Karimov’s passport was seized by the authorities. The head of the regional administration in Jizak visited the family home on 31 August, and offered Karimov positions at two state newspapers, apparently in a bid to entice him away from independent journalism. He refused and shortly afterwards, on 12 September, he disappeared. Two weeks later, Karimov’s friends discovered that he was being held against his will in a psychiatric hospital in Samarkand, initially under a six-month detention order. The authorities would not specify the reason for his detention, calling it a “private matter”. His fiancée was permitted to visit him and found him distressed by his detention; he had reportedly been forced to accept unnecessary treatment and anti-psychotic medication.

Karimov’s detention order was “reviewed” in March 2007 and extended for six months, but authorities disclosed no further details. Since then, as far as his family knows, the court has not officially passed a decision to further extend Karimov’s treatment. Nonetheless, despite regular promises that he would soon be discharged, he remains incarcerated. Karimov has now been undergoing forced treatment for more than four years.

Beyond Bars

This article originally appeared in Beyond Bars: 50 Years of the PEN Writers in Prison Committee. To subscribe to Index, click here. 

Transparency is at the heart of medical science. Every day decisions are made about when to stop and start treatment and how best to invest large sums of money in ways to protect the public from disease. All these rely on knowing as much as possible about the benefits compared to the risks of action or inaction.

No medical treatment is perfect or suitable for everyone — that’s why balancing risks and benefits is crucial. But healthcare is big business; it’s where science meets big money and not all research evidence makes it into the public domain — specifically into medical journals where doctors and academics glean their information.

Medical history is replete with examples of the benefits of a treatment being overhyped and potentially serious side-effects being buried, leading to poor decisions. This wastes public money and can cost lives.

Take the case of the drug lorcainide, used to regulate the heartbeat during a heart attack. In the early 80s, researchers in Nottingham carried out a study of the drug in 95 people using a method known as a randomised control trial. They noticed that nine out of the 48 people taking the drug died, compared to only one out of 47 who got a sugar pill, or placebo, instead.

At the time, the researchers thought that the high number of deaths in those given lorcainide might have been due to chance rather than the drug itself. For commercial reasons, the drug was not developed any further and the results of the trial were never published. However other, similar, heart drugs did make it onto the market and were widely used. But they too had serious safety problems and many were withdrawn.

According to Sir Iain Chalmers, a long-standing champion of transparency in medical research, the lorcainide trial might have been an early warning of trouble ahead for these other heart drugs. At the peak of their use in the late 80s, these medicines are estimated to have caused between 20,000 and 70,000 premature deaths every year in the US alone.

This is a particularly stark example of what might happen when critical evidence remains unavailable to doctors and researchers. Even when individual drugs do make it onto the market and have overcome the regulatory hurdles, information about their risks and benefits might well be hard to come by.

What the public doesn’t know

In western countries, legislation dictates that companies have to provide regulators with a thorough scientific dossier on all trials conducted on a drug so the data can be scrutinised before the drug is allowed onto the market. They are then required to do follow-up studies looking at any adverse reactions that might not have been picked up in the pre-market research. They must inform the authorities about what they find.

Many companies, however, have been reprimanded — mainly in the US courts — for hiding troubling side-effects of drugs, including: anti-depressants, such as Seroxat (known as Paxil in the US; generic name paroxetine) and painkillers, such as Vioxx (rofecoxib).

But it’s not always the companies which are unforthcoming about safety concerns; the regulators have dragged their feet too. Last year, the diabetes drug Avandia (rosiglitazone) was suspended from the market in Europe and severely restricted in the US because of an increased risk of heart problems. But this was long after both the manufacturer, GlaxoSmithKline (GSK), and the US regulator had reason to suspect an increase in serious side-effects.

Rather than the regulators — whose remit is to protect the public — it was the actions of the then New York attorney general, Eliot Spitzer, in a 2004 court case of GSK’s Seroxat, that led to the side-effects of Avandia coming to public attention. As part of a settlement with the state over its hiding of data on heightened suicide risk in teenagers who took the drug, GSK agreed to post results from its recent clinical studies on a website. And this included studies of the drug Avandia, many of which had been unpublished until then.

Three years later, Dr Steven Nissen, chairman of cardiovascular medicine at the high-profile Cleveland Clinic in the US, decided to analyse all the studies of Avandia on the website. Using a research method called meta-analysis, he pooled all the results together to see what they said overall. He found that the risk of having heart problems in people with diabetes who took the drug rose by 43 per cent compared to those who had diabetes and did not take it.

The following years entailed investigations into GSK’s conduct by the US Senate; intense deliberations by national drug regulators; questions about how we regulate medicine; and now pending class actions. But what really broke the case open was enforced transparency.
‘It’s important to realise what an important role publicly available trial results data played in the rosiglitazone story’, said Jerry Avorn, professor of medicine at Harvard Medical School.

During an investigation in collaboration with BBC’s Panorama in September 2010, the British Medical Journal looked into the different drug regulators’ attitudes towards transparency. In the US, the Food and Drug Administration’s (FDA) advisory committee discussions are held in public in front of the national press. Most of the relevant scientific documents are made available on a website in advance. Before the deliberations start, each panellist is required to declare any conflicts of interest in line with US legislation to increase transparency.

The UK: a need for transparency

But gaining an overall perspective of discussions within the European and UK regulators was far trickier. The BMJ attempted to speak to people who had sat on panels for them both, but they were bound by confidentiality clauses. Nor would Europe’s regulator release the names of the members of the scientific advisory group discussing the drug under the Freedom of Information Act (FOIA).

Doctors and the public in the UK had not been told that the national regulator had voted unanimously to take Avandia off the market several months before the European agency came to the same decision. If the European vote had gone the other way, who knows if the views of the UK’s panel would ever have been revealed.

Some say that open discussions and more transparency do not necessarily lead to better decisions. But documents obtained from the European regulators under the FOIA showed that advisers had concerns about Avandia’s side-effects from the outset. And knowing about these could have lent support to other academics who were ‘intimidated’ by the company, according to a 2007 report by the US Senate Finance Committee.

Manipulation of data

In 1999, when the drug was first licensed, Dr John Buse, a professor of medicine at the University of North Carolina who specialises in diabetes, told attendees of academic meetings that he was concerned that while Avandia lowered blood sugar, it also caused an increased risk of heart problems.

Concerned about the effects that his comments would have on their drug that had been touted for blockbuster status, executives at GSK (then SmithKline Beecham) devised “what appears to be an orchestrated plan to stifle his opinion”, the Senate Finance Committee report stated — in the light of internal company documents it had seen.

The report goes on to state that GSK executives labelled Buse a “renegade” and silenced his concerns about Avandia by complaining to his superiors and threatening a lawsuit. GSK prepared and required Buse to sign a letter claiming that he was no longer worried about cardiovascular risks associated with Avandia. Then, after he signed the letter, GSK officials began referring to it as Buse’s “retraction letter” to curry favour with a financial consulting company that was evaluating GSK’s products for investors. GSK has denied all allegations in the report, describing them as “absolutely false”.

Years later, Buse wrote a private email to a colleague detailing the incident with GSK: “I was certainly intimidated by them. … It makes me embarrassed to have caved in several years ago.”

Meanwhile, over on the other side of the Atlantic, EU drug agencies were drawing similar conclusions that the drug increased the risk of heart problems during their premarket discussions. In March 2000, Buse sent a letter to the FDA, saying Avandia might raise patients’ risk of heart attacks, and he criticised the company’s marketing, saying it employed “blatant selective manipulation of data” to overstate the drug’s benefits and understate its risks. Doctors may not have prescribed the drug if they had known from the outset there were issues around its safety.

Tamiflu and hidden data

But data transparency doesn’t just mean exposing harm done, it can also help to establish how well something works —- and that reported benefits aren’t just hype. Major international decisions are made on how best to tackle impending health crises based on how well a medical invention works as reported in journals, for example the UK government’s decision to stockpile the influenza drug Tamiflu.

Back in 2009, during the swine flu pandemic, the internationally respected Cochrane Collaboration, a network of independent academics, was commissioned by the NHS to look at the evidence about the benefits and risks of using Tamiflu — a drug the UK had spent around £500m on to treat all those infected in the outbreak.

The academics, led by Christopher Del Mar at Bond University in Australia, scoured the medical literature to find all the different relevant studies of the drug to pool together all the results to see what they said. They were also aware that there had been reports of suicides in Japan — the biggest consumers of Tamiflu — and they wanted to find out more.

But when they went about surveying the medical literature, not all of the trials they knew existed about the effects of the drug in healthy people appeared in the medical press. To fairly reflect the evidence, they needed to know exactly what all trials said. But they couldn’t access all the data they needed — the majority of trials were unpublished. This included the biggest, and therefore arguably the most important, trial conducted.

The UK government at the time had based its decision to stockpile Tamiflu in such large quantities on one particular piece of research published in 2003. This paper showed the dramatic benefits of giving Tamiflu to healthy people who got the flu and not just those who were at particular risk of getting sick. It claimed that the drug reduced the number of people taken to hospital with the flu by a half and reduced serious complications by around the same amount. Little wonder that health officials, concerned about the strain on the NHS, stockpiled the red and yellow pills in such vast quantities.

But this piece of research was funded by the drug’s manufacturer, Roche. It relied upon eight unpublished studies, each given code names, and used the company’s own statisticians to draw conclusions about the data. The two independent researchers named on the paper — who are supposed to be accountable for the content of the research — could not produce the unpublished studies when the Cochrane Collaboration asked them.

Medical research relies heavily on the ability to replicate the findings of another piece of research. This helps to show that a finding wasn’t fraudulent or simply due to chance.

But the Cochrane Collaboration couldn’t replicate the 2003 findings. Its calculations based on the publicly available papers were at odds with the claims made and it needed to see the unpublished studies, so it turned to the company.

Despite asking Roche repeatedly for the full complement of research documents showing that Tamiflu would stop so many healthy people from going into hospital, the whole set were never forthcoming. What it did provide was limited in detail and not what the Cochrane Collaboration needed. Roche did nothing illegal — it is its commercial information. But its commercial information has huge repercussions for public health spend — both in terms of direct costs of the drug and its distribution, but also on what economists call the opportunity costs. Half a billion spent on Tamiflu is half a billion not spent on some other wonder drug.

Del Mar and his team were left to wonder if these bold claims really did stack up — and if the unpublished trials really were the best of the lot, why were they unpublished?

What should have been a straightforward exercise to confirm the evidence base for current policy and practice became instead a complex investigation involving the Cochrane Collaboration, the BMJ and Channel 4 News. Not only did this unmask the extent of unpublished data, it found that the person who actually wrote some of the journal papers was never credited — known in the trade as ghostwriting.

This is not the benign undertaking it is in celebrity autobiographies. Commercial medical writing firms team up with drug companies to draft a series of academic papers aimed at medical journals to promote a carefully crafted message. In the case of Tamiflu, it was that the drug helps to reduce serious complications.

The lead investigator author who was named on the biggest trial – which was unpublished — said that he couldn’t remember ever having participated in the trial when the BMJ/Channel 4 News asked him. And the investigation revealed that documents submitted to Nice (the National Institute for Health and Clinical Excellence) show different investigator names appended to the key Tamiflu trials at different points — nowhere is it totally clear who took overall responsibility for all of the studies.

Behind closed doors

In a later twist, an investigation the BMJ conducted with the Bureau of Investigative Journalism revealed that experts who had been paid to promote Tamiflu were also authors of influential World Health Organisation (WHO) guidance on the treatment and prevention of pandemic flu. Nowhere were their conflicts of interest made public, despite the WHO having a specific policy to exclude those with such major competing interests from crafting guidelines. And when the scientific evidence pointed to a serious global outbreak of swine flu in early 2009, the WHO pulled together an international expert panel called the Emergency Committee. Keeping up the trend of opacity that had been a recurrent feature of pandemic planning, the committee executed its decisions — which the former health secretary, Alan Johnson, said would lead to “costly and risky” repercussions — behind closed doors in Geneva. An internal WHO investigation conducted by Harvey Fineberg, president of the US Institute of Medicine, criticised the lack of transparency and timely disclosure of conflicts of interest in May last year.

After an inauspicious start — with experts from within the US regulatory agency saying the benefits of healthy people taking the drug were marginal at the outset — Tamiflu sales sky-rocketed. This, coupled with a mild strain of flu and an abject lack of transparency, allowed conspiracy theories to ferment that alleged the WHO was in league with big pharma and had fostered fears of a pandemic in order to boost sales of drugs. And with blogosphere rumours abounding, not only has the WHO’s reputation taken a hit, scepticism might well accompany future warnings of serious flu outbreaks.

“Open access should be the default setting”

Yet again the role of the regulators comes into the spotlight. Roche said that it had supplied all the required data to US and EU regulatory authorities. Only after five months of chasing drug regulators with FOI requests, asking for the full study reports of trials that Roche submitted for its market approval, did the Cochrane Collaboration get some of what it asked for.

“Open access should be the default setting for drug trials once the drug is registered. The public pay for the drug, the public should have access to the facts, not sanitised versions of them”, one of the Cochrane collaborators, Dr Tom Jefferson, said. He believes that drug regulators should make data accessible once a drug comes onto the market. Others suggest that the regulators should also publish the data of drugs that have failed to make it onto the market. That way the situation that happened with locainide would be avoided.

This, too, might be helpful for those charged with making decisions about which drugs health services should use, such as Nice. Writing in the BMJ last year, researchers from the official German drug assessment body charged with synthesising evidence on the antidepressant Edronax (generic: reboxetine) reported they had encountered serious obstacles when they tried to get unpublished clinical trial information from the drug company that held the data.

Once they were able to integrate the astounding 74 per cent of patient data that had previously been unpublished, their conclusion was damning: Edronax (reboxetine) is “overall an ineffective and potentially harmful antidepressant”. This conclusion starkly contradicted the findings of other recent studies that pooled the data published by reputable journals.

But the amounts of data submitted to regulators can be voluminous — another reason why overstretched and underfunded drug authorities could benefit from the safeguard of publicly available data that academics could analyse. The Cochrane Collaboration is now in possession of over 24,000 pages to peruse and distil. But this kind of volume doesn’t deter researchers; they are actively asking for it.

In June this year, Medtronic, a medical technology company, drew widespread criticism in the US for its alleged failure in published research papers to mention the side-effects of a spinal treatment it manufactures. Capitalising on the company’s dip in public opinion, Harlan Krumholz, professor of medicine and public health at Yale University, approached Medtronic to take part in a transparency programme for industry that he had set up. He wanted access to all data it had on file — published and unpublished — to commission two independent reviews of it to see what it really said about safety.

“Industry’s reputation has really dropped substantially. People are concerned. They’ve lost confidence and trust in these companies,’”Krumholz said, adding: “Marketing has sometimes gotten the best of the companies and there have been some episodes that have tarnished their reputation. So they are in great need to show to the public that they are really interested in the societal good and want to contribute in ways that are meaningful.”

The company obliged and described its move as “unprecedented in the medical industry”. Needless to say, not all companies are keen on having their data analysed by independent researchers. When Krumholz first approached manufacturers asking them to allow the scientific community to vet their data when safety concerns had emerged, he was rebuffed at every turn. Nevertheless, he hopes this will change and transparency will become expected rather than simply celebrated. He hopes his scheme will make it impossible for other companies — particularly when questions are being raised about the safety of their products — to simply say that they are not going to share all the information they have that may be relevant.

Betraying trust

But there is a broader ethical aspect to selective publication. People often participate in clinical trials because they want to help grow scientific knowledge. And the very nature of many trials means there is a level of uncertainty of what a drug or device may do. This includes any potential benefits and it also involves risks.

According to Chalmers, those who don’t publish all the studies are betraying the trust of those who have volunteered themselves to medical science. “If a patient takes part in a clinical trial — which is essentially an experiment — they are doing their service to humanity and putting themselves at the disposal of science. Unless patients are explicitly told that the results won’t be published if the trial does not show what the researchers or the company want before they start the trial, there is a dereliction of duty on behalf of the researchers.”

Chalmers is uncompromising on what the fate of doctors who are complicit in the burying of bad results should be — they should face discipline that might include the loss of their right to practise medicine or conduct research. His mood reflects a growing concern about the moral duty of medical scientists to publish their results. Journal editors have railed against what they consider a distortion of the medical literature.

But for many years there has been comparative silence from organisations representing people conducting medical research. In the UK, the charge for transparency has been led by the Faculty of Pharmaceutical Medicine in London. Over a decade ago, it said:”Pharmaceutical physicians have a particular ethical responsibility to ensure that the evidence on which doctors should make their prescribing decisions is freely available.”

In June this year, the Royal Statistical Society followed suit and released a statement saying it is “committed to transparency in scientific and social research”. It said it is “crucially important that the results of scientific research should be made publicly available and disseminated as widely as is practical in a timely fashion after completion of the scientific investigation provided that there is no conflict with any legislation on confidentiality of data”.

Chalmers is critical of organisations who represent people conducting medical research — such as the Academy of Medical Sciences and the Royal College of Physicians — which refuse to sign up to a bill of transparency.

Attempts have been made to limit a researcher’s ability to hide trials that they may not want to come to light. Registers of trials sprang up. In 2005, the International Committee of Medical Journal Editors said its journals would only publish trials that were fully registered before they started — which should make trials that went missing much easier to spot. Then, in 2007, the US implemented legislation to ensure that all trials protocols are listed on a public searchable website called clinicaltrials.gov. Companies are supposed to update the information with changes or highlight when and where their research has been published. But the BMJ has found instances where the information on the website is out of date. And, unless someone goes through the database systematically to identify what studies have surfaced publicly, it’s hard to pin down exactly what impact the register has had on publication bias.

But once again, Europe trails behind in terms of transparency. The names of the trials being conducted in the EU appear on the EudraCT database. But crucial details of the study design and where it’s taking place are not on the website.

Europe: an example of how bad it can get

If data transparency is an issue for drugs, the opacity surrounding medical device governance is in a different league. Medical devices cover a wide range of products from adhesive bandages and syringes to heavy duty implantables, such as hip prostheses, pacemakers and stents.

Representatives of the drug industry marvel at how devices get away with a comparative lack of government and public oversight both in the US and the EU. Debates about the perceived flaws in the US system have been hammered out in public — the media weighing in on what they considered to be a failure of their regulators to protect the public adequately. Front page coverage of hip replacements failing and heart devices misfiring has forced discussions about inadequacies in their system into the US Congress.

But this has not happened to the same extent in Europe. One senior US official asked me why the European media has not scrutinised device regulation in the way that the American press had. In the States, Europe has been held up as an example of how bad things can actually get — with patients on this side of the Atlantic having been described as “guinea pigs”.

A joint BMJ/Channel 4 Dispatches in May this year didn’t do much to quell concerns. The EU system of approval by agreement between manufacturer and a commercial regulatory body operates under conditions of almost total commercial secrecy and is overseen in a hands-off manner by national regulatory authorities. Manufacturers submit data to a private body, which then assesses it to see if it is fit for market, and it is then allowed to display a CE mark. It is the same process that non-medical products such as mobile phones and toys go through.

As Nick Freemantle, professor of epidemiology at UCL, said: “The current European regulatory framework — CE marking — might provide sufficient safeguards for electric toasters and kettles, but it is not adequate for treatments that can affect symptoms, health related quality of life, serious morbidity and mortality.”

Representatives of device manufacturers say that the European light touch regulation approach is fine — that there is no evidence it is any worse than America’s. But, as the medical adage goes, absence of evidence is not evidence of absence.

There is no way of knowing what percentage of serious medical devices are faulty, poorly designed or have had to be recalled, because the European authorities have no centrally maintained register listing the devices on the market. In short, they do not know exactly what patients have had put into them in the first place.

Nor do they know on what evidence market entry was based. No European governmental regulator has it — scientific data sits with the manufacturers and the private companies that “approve” the device. As the head of device regulation in the US, Dr Jeffrey Shuren, said: “For the public in the EU, there is no transparency. The approval [requirements] are just what deal is cut between the device company and the private [organisation].”

Even data about devices that have been pulled from the market is virtually impossible to come by. When the BMJ — together with two doctors from Oxford University — contacted 192 manufacturers of withdrawn medical devices requesting evidence of the clinical data used to approve their devices, they denied us access, claiming that “clinical data is proprietary information”, that it was “company confidential information” and that they could discuss only “publicly available information” — of which there is very little.

Likewise, when we asked the relevant commercial regulatory bodies for the scientific rationale for approval of various devices that had been recalled, the results were stark. This information was classed as confidential because they were working as a client on behalf of the manufacturers — not the people who have them implanted in their bodies.

Even the Freedom of Information Act is of little help in obtaining information on any adverse events. The BMJ/Channel 4 Dispatches attempts to get access to adverse incident reports for specific implantables from the UK national regulator through the act were thwarted because it is overridden by medical device legislation. Article 15 of the EU Medical Devices Directive states: “Member States shall ensure that all the parties involved in the application of this Directive are bound to observe confidentiality with regard to all information obtained in carrying out their tasks.”

Even the Association of British Healthcare Industries, a trade organisation of device manufacturers, agrees that the lack of transparency leads to misunderstanding and mistrust. “Today it is very hard for anyone, even manufacturers and authorities, let alone citizens, to find out what products are approved to be on the market. We would like to see enhanced transparency and information to patients, citizens and all EU government authorities.”

Signs of change

So what does this mean? It means that doctors and patients are left to trust the companies to provide them with information about the benefits and harms of using their products. But with little scrutiny, oversight and transparency, there are no guarantees of this being a fair reflection of what their data — where they have it — actually says.

But there is a movement for change. As Krumholz says: “I think one day people will look back and say now wait a minute. Half of the data were beyond public view and yet people were making decisions every day about these products? How did you let that happen? And I’m not sure how we let it happen.

“But I hope we’ll enter an era where that will be over, and in fact there will be a great sharing of data, that we’ll be able to have a public dialogue that’s truly informed by the totality of evidence, and that we’ll be able to make choices that are based on all of that
evidence, knowing that there are no perfect drugs. That’s always going to be a trade off. But we ought to be informed by all the evidence when we’re making these decisions.”

This article appears in Dark Matter the new edition of Index on Censorship magazine, which explores science and censorship.

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The Leveson inquiry, whose remit includes examining “the culture, practices, and ethics of the press”, as well as making recommendations for a “new more effective policy and regulatory regime which supports the integrity and freedom of the press:, represents a twice-in-a-lifetime opportunity to reform the behaviour of the press and the manner in which it is regulated. Why twice? Because we’ve actually been here before.

During the 80s, intrusive and generally excessive behaviour by the popular press led to a growing number of calls in Parliament for newspapers to be regulated more effectively. In 1981, Frank Allaun introduced what was to be the first of a series of private members’ Bills calling for a statutory right of reply for members of the public against whom allegations had been made in the media as a whole; Austin Mitchell introduced a similar Bill in 1984, and in 1987 Ann Clywd brought forward her Unfair Reporting and Right of Reply Bill. These were all Labour MPs, but in 1987 the Tory MP William Cash presented his Right of Privacy Bill, and the following year another Tory, John Browne, introduced a Protection of Privacy Bill, closely followed by Labour MP Tony Worthington’s Right of Reply Bill.

In 1980, the Campaign for Press and Broadcasting Freedom set up an independent inquiry into the Press Council, chaired by Geoffrey Robertson QC. This produced the highly critical report People Against the Press, which called for the Council to be given considerably sharper teeth and for the creation of a statutory press ombudsman, as well as for a Freedom of Information Act and the relaxation of laws which hindered investigative reporting. (In the present context, this is a work which urgently needs revisiting.) In February 1987, Lord Longford initiated a debate on press standards in the Lords, and in July of the same year Labour forced a debate in the Commons on Murdoch’s acquisition of the Today newspaper.

By the late 1980s, loud demands for press reform were therefore very firmly on the political and social agenda. This led to the appointment in 1988 of the eminent QC Sir Louis Blom-Cooper as the new head of the Press Council, with the aim of making it a more respected, authoritative and effective self-regulatory body. Like Geoffrey Robertson, Blom-Cooper was concerned both to protect, and indeed to enlarge, the freedom to practise serious journalism which was clearly in the public interest, but also to provide forms of redress for those who had been the victims of mere muckraking and scandalmongering.

The problem was, however, that the popular press cared little for the former kind of journalism but was determined to protect the latter at all costs. Thus Blom-Cooper’s reforms not only found little support amongst owners and editors (and by no means only at the popular end of the market), but he himself became the target of press mischief-making, both in the newspapers themselves and, more damagingly still, behind the scenes in Westminster and Whitehall. Thus the Council was described in the news- papers it was supposed to be regulating as consisting of “pompous laymen and self-important journalists”, as straying “too far into the jungles of taste and discretion”, as a “bunch of loonies” (the Sun, inevitably) and as issuing “hectoring encyclicals”.

Seemingly showing little faith in Blom-Cooper’s reforms, in 1989 the government responded to the growing clamour over press misbehaviour by establishing a committee of inquiry under Sir David Calcutt QC, whose remit was to “consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press and improve recourse against the press for the individual citizen”. The writing was clearly on the wall for the Council, and indeed Calcutt was to recommend its abolition and its replacement by the Press Complaints Commission, a body with, to the delight of the press, an even narrower remit than its predecessor, being an organisation which was concerned solely with receiving, mediating and adjudicating on complaints.

The press attitude to Louis Blom-Cooper’s reforms demonstrated all too clearly that the newspaper owners and editors simply would not countenance any self-regulatory measure of which they themselves did not approve. Furthermore, they used their considerable political influence to help into existence a neutered body with which they would feel considerably more at ease. And as absolutely nothing has changed, at least for the better, since the death of the Press Council and the birth of the PCC, this immediately raises a crucial question: even if Leveson does come up with proposals for effective press reform, would the government be prepared to enact them in the teeth of massive, daily press hostility? Past experience suggests that it would not. Even now the knives are out for Leveson in papers such as the Daily Mail, and it’s likely that the government is being relentlessly lobbied by the press barons behind Leveson’s back. Indeed, given that one of the other matters which Leveson is investigating is ‘the relationship between national newspapers and politicians’, he already has a ready-made case study right under his nose.

Julian Petley: What opportunities for press reform do you think are presented by the Leveson Inquiry?

Louis Blom-Cooper: In my view, Leveson presents us with a golden opportunity to do something on the grand scale. All the focus on the press has been, for historical reasons, on complaints, but handling complaints is a disciplinary function, it’s not about monitoring or supervising. What the public needs is to know what its press is doing on its behalf, and also what it is not doing — for example, the reporting of the activities of government prior to the war in Iraq, about which we were left almost totally in the dark because newspapers were not reporting them.

Julian Petley: There has been a great deal of discussion about whether any new arrangements should be independent, self-regulatory or statutory. What’s your view?

Louis Blom-Cooper: I go absolutely spare when people say that whatever intervention there is it must be non-statutory. This is a total nonsense. It depends entirely on what the statute seeks to achieve and what it contains. I also think we need to get rid of the word “regulation”; what we actually need is an independent body which carries out monitoring — independent monitoring of the press. The word “regulation” implies, I think, to some people, some form of executive power, and what I would propose does not contain executive power.

Any form of public intervention to create such a body would require legislation in the first instance. But one absolutely does not want the supervision to be carried out by government itself, rather the government should establish an independent, standing body by means of statute, namely a Commission. The statute establishing the Commission would also set up an Appointments Commission which would consist of, for example, the chairmen of the British Library, the British Museum, the Association of Vice-Chancellors and Principals of Universities, the Lord Chief Justice of England, the Lord President of the Court of Sessions; they wouldn’t be specifically named people, but the people who held these offices at the time of selection. One would thus put between the institution of government and the public itself a wholly independent body, independently selected.

Julian Petley: What powers would this body have?

Louis Blom-Cooper: This brings us back to the nature of the body itself. I would have a standing Royal Commission composed of people who were entirely independent of publishing in any form and appointed in the fashion which I’ve just mentioned. And it should certainly include members of the public; half of the people appointed to the Press Council were members of the public, and every year we used to receive more than 1,000 applications. This certainly wasn’t replicated in the PCC. As I’ve said, this body should be conceived on the grand scale. For example, it should be involved in the question of the education and training of journalists, and in ensuring that there is plurality of press ownership, so that in the case of mergers they can examine whether or not they should take place. In all of these matters it should be undertaking investigations, not exercising executive power. What I do think vitally important would be the Commission’s ability to conduct public inquiries, and the statute would have to give it all the necessary procedural powers to conduct such inquiries, in particular the power to subpoena witnesses. These are what the Press Council sadly, and damagingly, lacked when it carried out its inquiries into press behaviour in the Peter Sutcliffe case and the 1990 Strangeways Prison riot. These would be statutory powers, but they would be procedural, they wouldn’t deal with the substance.

Julian Petley: How would the Commission be funded?

Louis Blom-Cooper: The Commission would have to be funded by Parliament, to whom it would be answerable, and they would have to go to Parliament every year with their budget, just as the Supreme Court has to do, to ask for money to support their activities. So it would have to be funded out of the public purse and not, for example, by a levy on the newspapers: one doesn’t want the press to have any interest, as it were, in the activities of this body. My parallel here, structurally and constitutionally, would be the Standing Royal Commission on the Environment, which is constantly looking at what’s happening to the environment, or PhonepayPlus [formerly known as ICSTIS], the regulatory body for all premium rate phone-paid services in the United Kingdom.

Julian Petley: Would the Commission deal with complaints against individual newspapers?

Louis Blom-Cooper: No doubt one of the Commission’s functions might involve receiving and adjudicating on complaints, but I don’t think that complaints are what really matters here. And, incidentally, insofar as complaints do matter, in my view the first clause of the PCC Code, which has to do with accuracy, is far more important than the one pertaining to privacy. The real problem is the daily lying, cheating and distorting in the press, all of which fall under the first clause of the Code.

Julian Petley: Indeed. Let’s just remind ourselves of what this actually says: (i) The press must take care not to publish inaccurate, misleading or distorted information, including pictures. (ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving the Commission, prominence should be agreed with the PCC in advance. (iii) The press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact. Now, this is trampled on daily and routinely treated with absolute contempt, particularly by the popular press. You have only to open any popular paper with the code beside you to realise the yawning chasm between the rule and the reality. Thus it’s entirely unsurprising that the PCC’s own statistics reveal that, in 2009, 87.2 per cent of the complaints which it received concerned accuracy and opportunity to reply, and only 23.7 per cent were about privacy.

Louis Blom-Cooper: Indeed, but I’m not sure that I’d necessarily get rid of the PCC under the arrangements which I’ve just outlined — if the industry itself wishes to deal with complaints against its members, why the hell shouldn’t it? It seems to me a perfectly sensible exercise on the part of any employer to want to know what is in fact happening amongst his own employees. On the other hand, it does need to be stressed that self-regulation in the newspaper industry has proved to be self-serving; it aims to protect the newspaper industry from anything that would impose responsible conduct on proprietors, editors and journalists by an independent agency. It has palpably not served the public interest. And the PCC Code is constructed entirely within the newspaper industry for the benefit of its practitioners, rather than as a standard bearer of ethical behaviour for the public.

But the really important point about the body which I’m advocating is that the statutory power which it would have would be non-executive, that is to say that it would have no direct control over journalists or editors — it would act by precept. Its main function would be monitoring — looking at the press day in and day out and telling the public what it is and, equally importantly, isn’t, doing. It could organise conferences with practitioners in journalism. It would keep under review all the laws affecting the press. It would make representation to the Competition Commission in cases involving takeovers. It should promote centres for the advanced study of and research in journalism. In all these things the Commission would aim to assist the newspaper industry in defining a set of workable standards, and to act as a forum for public debate on the freedom of the press.

It really is extremely important to understand, as I said in my 2007 lecture in honour of Professor Harry Street ["regulation of the media is entirely compatible with, indeed required by, society’s commitment to the values of freedom of speech. There is a need for a new watchdog which barks authoritatively, and, where appropriate, in stentorian terms, but does not bite, except indirectly and influentially"].

Julian Petley: I would agree entirely, but unfortunately the press has done its absolute utmost to equate regulation with censorship.

Louis Blom-Cooper: Yes it has, but what I’m talking about has nothing to do with controlling the press, because I regard all press freedom as simply a manifestation of our individual freedom; that is to say, we give to the press the duty to practise collectively and on our behalf the freedom of expression which we all possess under Article 10 of the European Convention on Human Rights. Freedom of speech belongs to all of us, it belongs equally to those who work in the media and to those who don’t. It’s particularly important to understand that such a conception of freedom of expression rules out the licensing of journalists. As Harry Street himself argued in Freedom, the Individual and the Law, journalism is “the exercise by occupation of the right to free expression available to every citizen. That right, being available to all, cannot in principle be withdrawn from a few by any system of licens- ing or professional registration”. No one can be prevented from exercising free speech other than by a law which applies to everybody. But, of course, there’s nothing necessarily wrong in restricting and confining freedom of expression by rules of law which do apply to everyone. If freedom of the press means no more than our collective rights performed on our behalf by those daily engaged in newsgathering, then we (the public), in the form of democratic government, should determine how far we should restrict our collective rights, and how the press is to be monitored and supervised. And it is certainly the case that current concerns about the standards of journalism suffice to demand both public debate and governmental action.

Julian Petley: Again, I would agree, but unfortunately the way in which press owners and their appointed editors understand press freedom in this country has precious little to do with Article 10. What they appear to mean by press freedom is the freedom to do just what the hell they like with the newspapers which they own and run. What we have here is in fact simply a smokescreen, the assertion of a property right in the guise of a free speech right, and an extremely arrogant claim that newspapers should be immune from regula- tions which apply to everyone else.

Louis Blom-Cooper: But such a position is wholly untenable. Tell me where, constitutionally, do they get that idea from? Maybe things have developed in this fashion, but tell me what is the legal basis for the present state of affairs? The only legal basis for freedom of the press is Article 10.

Julian Petley: Of course, but the kind of people to whom I’m referring don’t give a damn about Article 10 — all they’re concerned with is the threat posed by Article 8 to their commercial lifeblood of kiss ’n’ tell stories. Indeed, they want the government to rip up the Human Rights Act (HRA) and to withdraw from the European Convention on Human Rights, and their papers are filled day in and day out with the most poisonous and ill-informed stories peddling this particular line. The fact that British newspapers clearly hate the whole notion of human rights tells you everything you need to know about the fundamentally populist, illiberal and indeed anti-democratic nature of much of the British press.

Louis Blom-Cooper: Maybe, but the press’ argument is hopeless, because they’re caught by the Human Rights Act whether they like it or not. And the whole campaign against both the Act and the Convention is just historically illiterate and utter nonsense. One of the things which I found most disappointing about Ed Miliband’s speech at this year’s Labour conference was that there was absolutely no acknowledgement of probably the best thing that Labour did when it was in office, namely to introduce the Human Rights Act. There’s Nick Clegg nailing his flag to the mast of the HRA, and delightfully so, but how much better it would have been if Miliband had said that “we are the architects of the HRA and we have no intention ever of seeing it destroyed”.

Julian Petley: Which they’ll never say, because they wake up every morning terrified of what has been written about them in the right-wing press. What Leveson really needs to investigate is how we’ve arrived at a situation in which, thanks to politicians’ pusillanimity in the face of newspaper bullying, the likes of Paul Dacre, who is accountable only to his readers, effectively dictate government policy on a wide range of social issues. However, turning back to Leveson, do you think that the Calcutt Inquiry, the death of the Press Council and the subsequent creation of the Press Complaints Commission hold any lessons for the present moment?

Louis Blom-Cooper: The Calcutt Committee came to the conclusion that a body like the Press Council which, under my chairmanship, was pro- moting the freedom of the press was incompatible with a complaints body. And that was the reason for getting rid of it — the newspaper industry did not like the way that I was wanting to take the Council, to make it a public body which, whilst dealing with complaints, was very much there for the public. In other words, its primary function was not to protect the industry but to give the public something which they could recognise and accept with confidence as being on their side. So it was in the industry’s interest that the PCC was established, and from my very first day at the Council prominent people in the newspaper industry set about getting rid of me. And when Calcutt was set up, the industry saw this as the perfect opportunity to further their interests in the abolition of the Press Council.

This article appears in Dark Matter the new edition of Index on Censorship magazine, which explores science and censorship.

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Follow Index’s coverage of the Leveson Inquiry here and on Twitter @IndexLeveson

He is not (repeat: not) paid by, beholden to or in regular contact with fossil fuel companies or lobby groups trying to undermine climate change science. He is not even a climate sceptic. For years, McIntyre has been asking for CRU’s “crown jewels”, raw data assembled from weather stations round the world that it says proves how much the world has warmed in the past 160 years.

He does not believe this conclusion is a big lie. But he does want to see for himself. And in particular to look at how the data had been “manipulated” — a perfectly honourable process in which, for instance, some weather stations are made to count for more than others because they represent large areas with few weather stations, while others are discounted because their rural locations have been invaded by growing cities.

It’s not what everybody wants to do on a Saturday night, but surely he is exactly the kind of citizen investigator the 2000 Freedom of Information Act was intended to help.

Of course, his persistence has not made him a friend of CRU’s director Phil Jones. The crown jewels are his life’s work. For years Jones held out, with the backing of his university’s Freedom of Information (FOI) officers, from releasing the data to McIntyre. Jones said it was commercially valuable. He said it was his intellectual property. He said revealing it would damage international relations. CRU has been congenitally hostile to FOI requests from McIntyre and others. At the end of 2009, 105 FOI requests had been submitted to UEA for CRU data, of which only ten had been acceded to in full.

The crown jewels and data libertarians

The battle between the two men for the crown jewels was the backdrop — and very possibly the motive — for the still-mysterious hacking of CRU’s emails and their publication online at the end of 2009. Much of the world’s science community sided with Jones in the resulting “climategate” saga, condemning what they regarded as politically and commercially motivated attacks on their research.

But others took McIntyre’s side, seeing him as a data libertarian. And last June, following a new request for the data from Jonathan Jones, an Oxford physicist and “climate agnostic”, the FOI’s commissioner, Christopher Graham, finally ruled that the crown jewels should be handed over. And they were, a month later. The world did not fall in.

If CRU had been more open with its data from the start, a great deal of time and angst on the part of its scientists — and a great deal of public uttering of paranoid nonsense from climate deniers — would have been avoided. And if, in the months before the hack, Jones and his colleagues had not spent ever more time bitching about McIntyre and scheming to keep their data and working methods secret, then the emails would have contained little of outside interest.

Graham’s decision unlocks some four million temperature readings taken at 4,000 weather stations over the past 160 years. But as the journalist Jonathan Jones put it, “the most significant features of this decision are the precedents that have been set”. It could open the door to thousands of other British researchers being required to share their data with the public. Good.

Under the 2000 Freedom of Information Act, universities, like other public institutions, must share their data unless there are good reasons not to. It is now clear that the good reasons have to be just that — not excuses. Graham, who is the final arbiter in FOI requests, was scathing in his ruling that CRU claims that sharing data would harm international relations were “highly speculative”. And on commercial considerations, he noted acidly: “it is not clear how UEA might have planned to commercially exploit the information”.

But should all publicly funded data be free, and all publicly funded researchers required to hand it over? In an age when data distribution is so easy, it is hard to make a case that sharing data is just too hard. After the military, scientific researchers were the first people to use the internet, precisely so they could share large data sets among themselves. So why not let us all join in? But what about emails and research notes and the data from failed experiments? Some believe requests for such stuff would both damage research and overwhelm researchers. And some think your access should depend on who you are.

At the same time as the climategate FOI requests began building up at CRU, the giant tobacco company Philip Morris began — initially anonymously — asking for data from Scottish researchers who had interviewed thousands of teenage smokers on what they thought about tobacco marketing. Not only was this expensive research – paid for by a cancer charity — it was also, as the head of the Stirling University research unit Gerard Hastings put it, “the sort of research that would get a tobacco company into trouble if it did it itself”.

The researchers have held out — and went public with their disgust in the Independent in September. But here’s the bottom line. FOI legislation is “applicant blind”, as Maurice Frankel of the UK Campaign for Freedom of Information puts it. It does not matter if the thoughts of smoking teenagers are of interest to Philip Morris or the National Heart Foundation or someone who wants to stop their child from starting to smoke. They are, and should be, all the same. Otherwise Friends of the Earth would never get pollution data.

In this case, researchers may be able to argue that disclosing the information could jeopardise future planned research, for instance by drying up funds from cancer charities. But Graham’s tough line with CRU suggests that argument is not guaranteed to succeed.

Data sharing and a climate of fear

One reason scientists have such a problem with FOI is that virtually none of them realised that it would apply to them. Certainly, the science community failed to consider the consequences or lobby for the drafting of laws that might make sense for them. Only now is the Royal Society trying to catch up by forming a working group to discuss openness in science.

It is also true that there is little consistency among scientists about what the rules on data sharing and confidentiality should be. Some peer-reviewed journals have tough rules requiring access to that data underpinning research papers, but others do not, including some academic institutions. But there is a growing move to more openness that should surely be welcomed. Cameron Neylon, a biophysicist at the Rutherford Appleton Laboratory in Oxfordshire, writing in New Scientist in September, said the aim should be for “anyone, anywhere to contribute to science”. You can hear the shudders in the labs across the land. But to those who fear an avalanche of ill-informed nonsense arising from data sharing, he said: “If you care about the place of science in society or are worried about the quality of information on the web, then openness offers massive potential to engage people more deeply, educate them about how science works and increase the store of quality information on the web.”

In the months after climategate there was much discussion in the science community about the need for greater openness. But outside those in the open access movement, it has faltered. The message in the labs is that the inquiries into the affair absolved the scientists of any wrongdoing.

That is not quite true. The inquiries decided, rightly, that there was no grand conspiracy, although they felt they were not in a position to judge the finer points about the conduct of the science. The main enquiry, under Sir Muir Russell, seemed particularly confused about FOI. It noted damagingly that CRU had shown a “consistent pattern of failing to display the proper degree of openness”. But on the detail it showed a sometimes breathtaking lack of attention. It concluded that “there was no attempt to delete information with respect to an [FOI] request already made”, when the emails published online revealed quite clearly that one round-robin requesting the deletion of an email correspondence was sent two days after an FOI request for precisely that information.

Much of science has “closed ranks” behind the idea that those demanding access to their data are troublemakers. Nobel laureate and Royal Society president Sir Paul Nurse says “some researchers … are getting lots of requests for, among other things, all drafts of scientific papers prior to their publication in journals, with annotations, explaining why changes were made between successive versions. If it is true, it will consume a huge amount of time. And it’s intimidating.” Maybe, but the current law allows vexatious requests to be rejected. So that is a straw man.

A fine line between the crackpot and the sublime

In any event, the whole point of research is that it should be open to maximum scrutiny. And the scientific priesthood can no longer claim that scrutiny should only be among their specialist fellows.

And there is sometimes a fine line between the crackpot and the sublime. Earth science guru Jim Lovelock — a doyen for many modern climate researchers — left institutional academia in frustration at his ideas being ostracised. The Independent began its report of the 2011 winner of the Nobel prize for chemistry, Daniel Shechtman, thus: “An Israeli scientist who was once asked to resign his research post because his discovery of a new class of solid material was too unbelievable has won this year’s Nobel Prize in Chemistry – for that same discovery.”

The charge of sloppiness in the way science often portrays its findings to the wider public is also a warning against allowing too much self-policing. In June, the Intergovernmental Panel on Climate Change issued what it said was a summary of the findings of a detailed study of renewable energy. It headlined the claim that 77 per cent of the world’s energy needs could be met from green power by 2050. In fact, the “77 per cent” finding was the most optimistic of hundreds of academic studies reviewed in the report itself. Moreover, that particular study was conducted by one of the report’s own lead authors, who was also a Greenpeace campaigner. Curious. But most damagingly of all, this highly relevant information only emerged a month after the press release and subsequent media coverage, when IPCC got round to publishing the report itself. This was shameful spin.

The fuss over climategate showed that the world is increasingly unwilling to accept the message that “we are scientists; trust us”. Other people want to join the scientific conversation. Good scientists, interested in finding truth, should want to encourage them, not put up the shutters. The wider world instinctively knows to distrust those in all walks of life who reject openness. As McIntyre put it recently, “probably no single issue damages the reputation of the climate science community more than the refusal to show the data that supports their work”. There should, for the good of science as well as public discourse, be a presumption in favour of open access.

McIntyre, meanwhile, is still hunting. He believes CRU researchers using tree rings to unpick temperatures in past eras may have been cherry-picking their Siberian logs to help sustain the argument that recent decades are warmer than anything in the past 2,000 years. He cannot be sure, because they are still refusing to hand over their full data sets. CRU’s justifications have a familiar ring. Disclosure could do “financial harm” to the university by reducing its “ability to attract research funding”. Really?

If McIntyre eventually gets the data, could it undermine the case that man is warming the world? Certainly not; that is independent of past natural variability. Could it change our ideas about past natural climate change? Conceivably, yes. Is it a scandal that McIntyre cannot get to see the data to review CRU’s work and do his own science? I believe it is.

Fred Pearce is author of The Climate Files: The Battle for the Truth about Global Warming (Guardian Books)

This article appears in Dark Matter the new edition of Index on Censorship magazine, which explores science and censorship.

Click here for subscription options and more

Ayman handed himself in at noon on 27 April 2009. The police had been searching for him for three days, and his name had made headlines in the local press. He was the criminal still at large – his two accomplices had already been caught. They were held in an unknown location, under investigation. We all knew they were being interrogated, maybe even tortured.

The phone call had come the night before. “We need your help. I’m not sure what to do. Nobody wants to touch this case. I need you on this one, can you go with him?”

Ayman was a friend and I had worked with him on projects in the past. Maybe the presence of a woman would lessen the brutality he might face.

The police seemed surprised when we showed up the following day. In Mubarak’s Egypt, the police and state security were known for their heinous torture methods and arbitrary detentions. Nobody voluntarily handed themselves in, and we weren’t sure what they would do. Ayman admitted he was sick from fear. That morning, his face was drawn and he was gnawing at his nails.

At the downtown police station — a decrepit villa that had long ago been seized from a family who was forced to flee — we were escorted up worn stairs to a pre-fab top floor. There, in a cramped, smoky room, we were left to wait. I was offered a chair, Ayman the floor. He chose to stand.

Over the hours as we waited, mid-ranking officers came to ask who we were, what our case was.

“I’m an artist,” Ayman would say. “I make art.”

“She helps me come up with ideas.”

We had rehearsed our narrative: I was the ideas person — the one who came up with the project. He just executed — made the art. We had prepared a paper — the “project proposal” to give our story legitimacy, to try to break down the project in a language the police could understand. Our document began (in Arabic): “Inspired by the rise of street art around the world, and the growing emphasis being placed globally on the artist as community activist, Cairo-based artist Ayman took to the streets of Cairo last month in an effort to use his art to contribute to the city.”

The officers trailed in over the course of four hours. Each asked a question or two before nodding their heads and leaving. They seemed ill-equipped to deal with our case, and eventually, we were told that we would have to wait for the top-ranking officer — the head of the police station –– to arrive. He didn’t come in to work before late afternoon, but we could go in there. They pointed to another room with a rusty iron bed and flattened sponge mattress.

“There’s a TV on,” an officer told us.

“Enjoy,” he added, as he walked out laughing at the screaming blaring from the TV –– a torture scene in an underground Egyptian jail. An Egyptian thriller and drama.

Mixed messages?

Ayman was formally detained later that night. Over 14 hours, we had been subjected to endless rounds of questioning by police, a trip to a nearby court, and three interrogations by high-ranking officers; they already seemed to know everything about us, but each quizzically took us in, unsure what to conclude.

At 2am, they told me I could leave. Ayman, they said, would have to wait. He would spend the night in the police station jail. The charges were yet unknown. The police were unsure how to classify his act: what it meant, how great a danger he may be.

“It looks like it could be the eagle on the Egyptian flag with its wing broken,” we had heard one officer say in the hours as we waited. “Maybe that means, destroy the government.”

“It is a communist movement,” another offered.

“They want to overthrow the regime,” an informant said.

That night in the police station, Ayman stayed up, pacing. He was to be transferred to the state security headquarters early the following morning for further interrogation. At 7am the prison truck would arrive, the officer had told me before I left. “You can wait for him outside,” he said. “But we don’t know how long it will take. You might be there for days.”

In the next 48 hours, waiting for Ayman’s release, I learnt the police side of the story. They woke up one morning, one of them told me, and found five streets surrounding Tahrir Square filled with a “strange looking” figure painted on the walls. “It looked like it might have been a cult,” one officer told me. “Definitely a threat to the government.”

“One young officer ignored the first of these paintings, but then, the next morning, there were so many more of them. We couldn’t ignore it. We weren’t really sure what it was. The idea of writing on walls being art makes no sense to us.”

The graffiti on the streets downtown for which Ayman had been arrested depicted a street sweeper. A thin stencil outline of a man holding a broom. “Keep your city clean” was the thought behind his abstract art, “Love your country.”

One of them admitted: “None of the officers want to sign off on his case. No one is really sure how many followers he has and what this is really about. What does this symbol really mean? What is the message? We can’t take the risk. No one wants to lose their jobs.”

I met up with Ayman again on 28 June 2011, on a sidestreet near Tahrir Square, just minutes from where his street art had once been and around the corner from the state security headquarters where he had been blindfolded and interrogated. Clashes between protesters and riot police had begun late the night before, and by the morning, the street was the site of a pitched battle. Protestors chanted against the military, some of them threw rocks. The riot police responded with rounds of tear gas.

For hours this battle went on — the protesters moving forward, the police firing back. Young men and women were being carried out of the crowds, hit by tear-gas canisters or faint from the gas. A young boy went up in flames. There were informants in our midst, and soldiers in the distance, but the crowd relentlessly pushed on — not willing to yield.

During the 18 days of the Egyptian revolution, when the police were symbolically defeated and the army took control of the streets and the state, our fears of the notorious state security apparatus had been broken, and the streets of our cities had become, in many ways, our own.

“I feel I can do whatever I want now,” a friend had told me soon after Mubarak stepped down. “I want to spray the streets with paint.”

In the weeks that followed, my friend, other friends, artists, non-artists, took to the streets to do just that: fill the walls of the streets of Cairo with murals and art. “Freedom = Responsibility”, paintings of the martyrs, “VIVA EGYPT”, abstract collages of the Egyptian flag, pastiches of symbols of liberation. The self-censorship that we had all long subjected ourselves to was slowly lifting. The signs of it were everywhere.

Our fears had beenLast week, on that sidestreet of Tahrir, by a graffiti scrawl that said “F*** the Police”, Ayman and I talked about how things had changed.

“We’re free now,” he said as he snapped pictures on his phone. “We can do whatever we want.”

Taking back the streets

Some weeks ago, a friend and artist, MoFa, also known as Ganzeer, organised a “mad graffiti weekend” intended to “take back” the streets of the city. For many days he and a group of activists, artists, friends and volunteers gathered in his rooftop studio to discuss their plans.

By the time they hit the streets mid-May, they had stencils ready, vast supplies of paint, walls identified, and friends to photograph and film them. Their graffiti largely mocked and criticised the ruling military council, which had risen to power since Mubarak stepped down on 11 February. It depicted the underwear of the ruling Field Marshall Mohamed Hussein Tantawi, “freedom masks”, or muzzles, that spoke of the reality of military rule, and murals of army helicopters and life-size tanks.

MoFa, along with some friends, made posters of one of the works — the Freedom Muzzle, criticising Field Marshall Tantawi. On 25 May, as they were plastering the poster downtown ahead of a big protest planned for that weekend, MoFa and two friends were detained –– to be released, quite swiftly, several hours later after straightforward questioning.

I received an email the next day when the news hit the local press.

“I’m sure you’ve seen this,” my friend Bruce –– an international critic, a dean at the American University in Cairo, and big supporter of street art — wrote, referencing a link to an article about the arrests.

I wrote back: “I do. But I’m not sure how much sympathy I have. Around the world street art is considered vandalism, so content aside, this should come as no surprise. When Ayman was arrested a few years ago, no one was willing to support him. Of course now all these guys are raging about how bad the army is. Yes, the army is problematic, but, in the military council’s mind, it’s these same youth who were burning the Israeli flag and threatening to storm the embassy last week. That was one of the most destructive acts to the legacy of this revolution — to its peaceful nature, to its spirit. Why not use street art to raise awareness, to subtly provoke thought, to reach out to the masses? Are direct political statements art? Is provoking animosity towards the army art?”

Some weeks later, on the one-year anniversary of the death of Khaled Said, the 28-year-old man who was beaten to death at the hands of police last year, activists and citizens at large took to the streets in his memory. Many of them held up pictures of him. Others hoisted the Egyptian flag. Some had stencils and cans of paint — portraits of Khaled that were plastered on downtown streets: on random buildings, on the walls of the Ministry of Interior, on shop windows and shutters. One of the portraits was sprayed over the marble plaque of the American University’s Rare Books and Special Collections Library, which stands a few blocks from Tahrir. A friend took a picture of it. I sent it to Bruce. “Art or vandalism?” I wrote in the subject line.

This article appears in the new edition of Index on Censorship. Click on The Art Issue for subscription options and more.

Yasmine El Rashidi is a writer based in Cairo. She is a frequent contributor to the New York Review of Books and the author of the Battle for Egypt: Dispatches from the Revolution (New York Review of Books)

Earlier this year, the arrest and detention of Ai Weiwei, China’s most famous artist and Index contributor, caused an international outcry. In an exclusive interview with Index, celebrated sculptor Anish Kapoor explains why artists have a duty to take a stand for freedom of expression

Index: When you made the decision to withdraw from the show in Beijing and to make a stand for Ai Weiwei, had you ever made that kind of political gesture before?

Anish Kapoor: When Ai Weiwei was arrested, I was doing this work in Paris at the Grand Palais [‘Leviathan’, pictured below]. I thought about it long and hard –– should I, shouldn’t I dedicate the work to Ai Weiwei? What does it mean? One has to be very clear that in doing such a thing you never do it without a degree of self-interest. I needed to understand what my self-interest was and what I was trying to do. Was this about Ai Weiwei or was it about me? And I decided in the end that as one of the big shows in Europe during the summer, I could dedicate it to Ai Weiwei and that it wasn’t about me. I discovered in doing it that actually I have a voice that I probably didn’t know I had before and I think that’s very important. And then I felt that since I’d already taken a stand, the show that the British Council was planning ["UK Now" in China next year] required a further stand. I think it’s essential that while there are still a hundred and more people locked up in Chinese jails — I’m talking about intellectuals, I’m not for the moment talking about ordinary people who go on the internet — I think it’s the duty of all artists to stand up and say we won’t take part. I’ve called out to artists all over — don’t take part, don’t show in China. A few have started to respond. I see that Daniel Buren, the great French conceptual artist, has pulled a show in China, and there are others. I’m glad to see it. It means something.

Index: You also proposed that galleries close for a day across the world and said it would be good for the art world to come together more.

Anish Kapoor: It’s perhaps naïve of me, but I think it’s important that we stand together for colleagues. It’s very hard for galleries to close for a day, but rather than a negative action, I feel in the end we were about to make a positive action on the anniversary of the 100 days of Ai Weiwei’s incarceration, but thankfully he was released. The positive action was to try and get thousands of galleries all over the world to show a work of Ai Weiwei’s.

Artists under threat

Index: China is an extreme case in the degree to which it controls, and attempts to control, freedom of expression. Would you like to see the art world being more politically engaged and showing more solidarity? There’s a very long tradition of writers coming together, but not in the art world.

Anish Kapoor: The art world is extremely fragmented. It is a place that’s also infiltrated by money and other instruments of influence. And it never finds itself in a place where it can shout. I think we need to learn how to do that and find a way to have singular voices. Through the whole period of Soviet repression of artists, which was severe, the art world didn’t say a thing. The avant-garde has held itself away from human rights. It’s been a great struggle for artists of non-European origin. It’s been a great struggle for women artists, quite contrary to the sense that the aesthetic world is an open forum –– it isn’t. It’s extremely doctrinaire and extremely partisan. And I think those battles are still being fought. So it’s not surprising at one level anyway.

I can only explain it by [the fact that] these old instruments of power in the art world are generally male and white, and within a certain aesthetic tradition. All of that has begun to fall apart in the last decade or so. We still haven’t got to the point where, if you like, lone, outsider voices can be properly heard. Ai Weiwei is a celebrity, so it’s relatively easy [for him to be heard] –– much harder in many other cases.

Index: Artists are more subject to arbitrary censorship wherever they are –– whether in the free world or more repressive world.

Anish Kapoor: I think it’s also because contemporary visual culture isn’t uni-directional. When you write a piece, you have to articulate a precise point in words – political or otherwise. An art work can be nebulous in relation to the politics of its situation. It can indicate a discomfort without actually articulating it and therefore it’s much harder to pin down. It’s much harder to say: ‘This is subversive.’ It’s hard to define what subversive is –– especially in contemporary language and contemporary visual culture. Ai Weiwei, in that sense, is somewhat more articulated towards a series of events — noting down the number of people killed by corruption and maladministration, or collecting and making monuments with marbled doors of all the houses that have been knocked down and land that’s been taken away from the so-called squatters. It’s still nebulous though. If you look at the work it’s just a bunch of marbled doors. It doesn’t obviously say what we infer from it. Though we know what to infer of course.

Index: I’m also thinking of artists in the West. There’s a famous case of the Smithsonian last year bowing to conservative pressure. There’s galleries in London that have problems when they show the work of Sally Mann for example.

Anish Kapoor: I think we have a very carefully defined sense of what’s acceptable, especially if it goes near children or pornography — all those much more difficult areas. Censorship is there and some of it is okay, I assume. But how we monitor it is important.

Index: When you say it’s ok …

Anish Kapoor: I can see that there’s a reason to monitor pornography and paedophilia, especially unacceptable things, and we have to understand that anything that encourages them has to be watched carefully. I understand that impulse but we go there, even there, with great care.

Index: Artists are by the very nature of their work going to be more vulnerable to pressures of conservatism or conformism.

Anish Kapoor: Of course. There’s a kind of naughty boy or naughty girl way of doing it which a lot of artists have taken — why not? I’m not that kind of artist at all. I feel that agitprop as a method is problematic — for me — in terms of my poetic understanding of what a work can be.

When it comes to governments, economic interests override human rights

Index: I wanted to ask you about the British Council’s response to the dilemma of artists displaying work in countries that have a poor human rights record. Chief executive Martin Davidson has said: “It is through cultural exchange that we best demonstrate the benefits of free artistic expression and build supportive links between people in the UK and China.”

Anish Kapoor: I say phooey to that I’m afraid. I did suggest to them [that they] ought to make the central piece in the [UK Now] show a kind of dedication to Ai Weiwei — or to one of the other artists. If they’re going to do this show then they ought to have [Chinese] artists properly take part. The governmental view over the past 30 years has been we’ll speak quietly in public and loudly in private. Well, 30 years of doing that hasn’t done a damn thing. We had the premier of China here [in London] and Cameron was silent on the subject. [Was that] just because Ai was released? No, that was carefully timed. And I think silence says that there are economic interests that override human rights interests. It’s disgraceful.

Index on Censorship: China’s one of the most flagrant examples [of human rights abuse], Iran would be another. Would you start applying the same [tactics] to other countries?

Anish Kapoor: One has to. In the end one has to. Iranian culture, like Chinese culture, is extraordinary. One has to take a moral stand in a way with colleagues for solidarity. I think it’s important to understand in this also that governments are ineffective. I think that’s maybe the most important point of all. Individuals have to do it all. So therefore it’s our duty as individuals to stand up and say we won’t take part or protest. The Chinese don’t listen to anyone while there are government protests — I have absolutely no doubt whatsoever that it’s individuals making a noise all over the world that made them release Ai Weiwei. I’ve no doubt about it. Governments are just ineffective at this. And we have the power. We must do something.

This article appears in the new edition of Index on Censorship. Click on
The Art Issue for subscription options and more

We need to know more about technology than the techno-fans. We need to know more than ministers promoting technological solutions to social problems (not hard to do); we need to know as much about security as the security services; we need to know more about communications techniques than the media, and we need to know more about networking than social-networking gurus. This knowledge can be a terrible thing, because everywhere we look we see vulnerabilities. The sad truth is that the entire edifice of modern communications is built upon fragile foundations.

It didn’t have to be this way. Privacy advocates lost the argument by allowing governments and industry to define the needs of citizens and users. We would call on companies to strengthen the technical protections in their systems and they would claim that users don’t care about security or are uninterested, citing 18-year-olds who want to publicise their private lives or housewives who don’t want to be bothered with complex technology.

We are now facing tangible and hitherto inconceivable threats to our liberty because the entire edifice of modern communications and information technologies is built upon consumer stereotypes.

It is our collective fault now that there is a rapidly growing number of data breaches and data losses. The systems that were built to contain and protect our information are fundamentally flawed. The flow of personal data is becoming the default, and the dams erected by law are temporary annoyances for an industry interested in profiting, governments interested in monitoring and malicious parties whose motivation can be obscure. If the US State Department can’t be bothered to adequately secure its own network of inter-embassy communications, what chance is there that Facebook and Google will take better care of your personal messaging and commonly used search terms?

The irony is that the only debate we privacy advocates ever seriously won was over the right of individuals to use encryption technologies to secure their communications. We fought this battle in the 1990s, on the cusp of the information revolution, looking forward to the day when we would all have desktop computers, and everyone would use encryption technologies to secure their communications. Governments were keen to maintain their restrictions on the general public’s ability to encrypt communications so that law enforcement agencies retained unfettered access to content.

We fought these restrictions and, even to our surprise, by the end of the decade we eventually won. By this time, however, governments had successfully stemmed the tide: cryptography and other privacy-enhancing technologies had come to be seen as obscure and inconvenient. Everyone is now theoretically capable of encrypting their communications — but no one does. Furthermore, restrictions on encryption remain in countries such as China, India and across the Middle East.

This is indicative of how the entire infrastructure of the modern economy and social life is built on insecurity. Privacy is becoming a popular subject, and a growing concern for the average citizen and consumer of mainstream technology. Yet users’ interest is poorly serviced. This is why there is a frequent narrative that ‘privacy is dead‘. Regardless of modern concerns, faulty decisions have been made at key moments in the development of modern computing.

Microsoft was the first culprit to emphasise ease of use over security in the 1990s, leading to a decade of annoying trojans and viruses developed by teenagers. In response, a software industry of anti-virus checkers and firewalls arose to plug in the holes so that users were informed and protected from attack. We had the chance to learn from this and make our next technological steps more informed and considered. Instead, Smartphone operating system developers like Apple and Google are now making similar mistakes by not keeping their users informed of what kind of information is leaving their devices and what applications are doing with their data. This is a repetition of Facebook’s approach when they created features that broadly shared users’ information, only later adding some features to inform users and to let them have some authority to control information flows when using third-party applications. Once your information is collected by devices and applications, as we have seen from Microsoft in the 1990s, and now Apple, Google and Facebook, it is rarely secure. In fact, your data is often readily available to any party who can query, buy, subpoena or simply steal it.

The expansion of ‘cloud’ services like Google Documents or Dropbox makes matters even worse. Instead of residing on your computers, your most confidential information is not only removed from your control, it is removed from the country and stored on foreign servers under the jurisdiction of foreign laws and law enforcement agencies. Almost universally, this information is not secured. Documents, emails and calendar information are stored in unencrypted form, and readily accessible by local law enforcement authorities.

Amongst the few positive developments, Google recently deployed disk encryption capabilities in its mobile operating system, Android, though it still has to be turned on by the user. Even when these companies do build in the capabilities for privacy, they rarely, if ever, come as standard. Security is the exception rather than the rule.

After the Russian authorities began clamping down on Russian non-governmental organisations for breach of copyright (as a pretence for searching computers), Microsoft then kindly offered free versions of its operating systems to NGOs. Unfortunately, the version of Windows they offered does not include the use of disk encryption, as that is only available in the ‘premium’ editions.

At the core of this problem is companies’ perception of their typical user. The typical user in whose image applications, programs and social networks are designed is an American teenager, perfectly content to transmit and publish every detail of their personal life to an unlimited audience. It is not the advocate, the dissident, the researcher, the professional — the people who need varying degrees of data security in order to protect their livelihoods, and sometimes their lives. Facebook, Apple, Microsoft and Google all require their users to jump through hoops in order to protect their information, and the majority of these users lack the time or awareness to do so.

In turn, companies’ systems are being probed, and vulnerabilities are being exploited. Last year, a gang in New Hampshire used ‘publicly available’ social network updates from area residents to target addresses when they knew the homeowners were out or away, stealing over US$ 100 000 worth of property in a week. A survey of hackers and security experts last year found that more than half of them were testing the limits of cloud services’ security.

Meanwhile, last year a Google employee was fired after it was discovered that he was monitoring the communications of teenage girls. Far more widespread, insidious and difficult to combat than such isolated incidents of criminality are the routine surveillance practices conducted by governments. These are not techniques reserved for dictatorships. For instance, the spying capabilities embedded by Nokia Siemens in their technology for Iran’s telecommunications system, intended for the use of the Iranian authorities, were mandated by the Clinton administration under federal law applying to all US telecommunications firms, and then supported by European policy-makers and standards bodies under the more acceptable guise (or pretence) of protecting their own citizens from crime.

Some countries, like Sweden, openly acknowledge that every piece of information that enters or leaves their borders is subject to government surveillance. Whether you’re a journalist sworn to protect the names and addresses of your sources, a lawyer building a case against a corrupt high profile politician, or a human rights advocate, all are pinning their hopes for security on a fantasy: the belief that the people who build your operating systems and applications have any way (or, indeed, any intention) of protecting you against governments who have the law on their side.

Another part of the fantasy is that governments are in control. Disturbingly, in fact, they don’t even appear to have complete mastery of their spying capabilities; for ten months during 2004-2005, the Greek government’s own surveillance technology was turned against it when an unknown adversary monitored the voice calls of dozens of government officials and cabinet members, including the prime minister. Between 1996 and 2006, Telecom Italia had a similar breach where more than 6000 individuals’ communications were illegally monitored, for the purpose of perpetrating blackmail and bribery. As communications security expert Susan Landau noted in her testimony to the US Congress in February this year, in that period ‘no large business or political deal was ever truly private’.

Surveillance is getting easier. In the Hollywood version of governmental power, the seizure of digital evidence by the security services involves a dawn raid by armed officials, who carry off piles of hard drives, laptops and computer towers from seemingly innocuous suburban houses. This image is out of date and unrepresentative.

In the 21st century, law enforcement access is just a few clicks of the mouse away. Why enter your home and read your letters when they can get into your webmail account and read every message you’ve ever sent or received?

In the US, a member of staff at one of the major mobile providers recently let slip at an intelligence industry conference that the company receives eight million requests a year from domestic law enforcement agencies for specific data on geolocation; that’s a publicly traded company, one that advertises its services on billboards and TV channels across the country, not some shadowy private intelligence outfit operating under the radar.

There are companies in the business of surveillance that develop the databases, cameras, biometric scanners, DNA test kits, drones and a myriad other technologies that are being deployed around the world. Companies are also profiting from selling and buying personal information. Consider Thorpe Glenn, an Ipswich-based company that celebrates its ability to analyse the information of 50m mobile subscribers in less than a fortnight. Thorpe Glenn’s press releases boast about ‘maintaining the world’s largest social network’, with a full 700m more profiles than even Facebook can lay claim to. This practice is rapidly becoming an industry.

Chris Soghoian, a researcher in the US, has found that companies frequently get paid for each instance they respond to government requests. Google, for example, has received US$25 for responding to a request for data from the US Marshal Service. Yahoo!’s ‘Cost Reimbursement Policy’ offers US$20 dollars for the first basic subscriber record and then a discounted US$10 per ID thereafter, though email content is US$30-$40 per user. They could, technically, develop a business model just on handing over information to law enforcement agencies. Jokes aside, what incentive do these providers have to make communications infrastructure more secure? There are, however, some signs of change.

Over the past year some companies have announced security and privacy advances in their products andservices. Certainly the uprisings across the Arab world helped, as companies did not want to be seen on the wrong side of history and face the same kind of admonishment as Nokia Siemens after the Iranian elections in 2009. Google vacillated for years before turning on encryption on its network layer, but it is swiftly becoming common practice. It is to be hoped that we will see a similar paradigm shift now that Facebook has enabled users to turn on HTTPS to help protect data as it passes through the internet (although predictably enough it has yet to employ HTTPS by default, making it less easy for people to use it).

The global struggles against abusive governments have also focused international attention on the enormous capacities of those governments to spy on their citizens, and the enormous human cost of this kind of all-pervasive surveillance. Once the behemoths of the internet take positive steps, smaller companies will hopefully follow.

Yet so long as the key technology developers keep on assuming that their users are uninterested, and so long as they seek to profit by selling our habits and interests, we will all remain vulnerable. It is now time for a mature policy debate on privacy and security. Not one that sees the benefit of the state as paramount, nor one that presumes that if a service is free then the user’s information can be exploited. Business models should fail with each security and privacy blunder, just as laws should be called into question with every new breach and abuse. The rise of mobile devices and cloud services is a replay of the 1990s all over again, where the policy and business world is grappling with technological change and telecommunications growth.

If left to their own devices, governments will build more vulnerabilities and back doors while industry will acquiesce and build for ‘sharing’ and ‘organising the world’s information’. If we can hold on to this moment in history just a bit longer, and keep these companies thinking about the global community of diverse users, and not merely those who are 18 years old, while reminding them that backdoors aren’t always used for noble purposes, then we may have a fighting chance. Perhaps we can even chalk up a real win this time.

This article comes from the current issue of Index on Censorship magazine, Privacy is dead! long live privacy, subscribe here

Gus Hosein is Privacy International’s Deputy Director, and a Visiting Senior Fellow in the Information Systems and Innovation Group in the Department of Management at the London School of Economics and Political Science

Eric King is the Human Rights and Technology Advisor at Privacy International and Technology Advisor at Reprieve