Last March, a primary court in Mahdia (eastern Tunisia) sentenced Mejri and his friend Ghazi Beji to seven and half years in prison. Beji, who published a satirical book entitled “the illusion of Islam” online, fled Tunisia. Mejir, however, has been in prison since he was arrested on 5 March 2012.

Both men were fined 1,200 dinars (GBP £480) and sentenced to five years in prison for publishing content “liable to cause harm to the public order” under article 121 (3) of the Tunisian Penal Code. They each received a two-year jail term for “offending others through public communication networks” (article 86 of the Telecommunications Code), and another six months for “moral transgression.”

On 25 June 2012, the Monastir Court of Appeal upheld Mejri’s conviction.

On 23 April 2013, a committee supporting the two young men published a letter from Mejri, written in his prison cell in Mahdia, in which he claims he has been subject to torture. Mejri wrote:

There’s no freedom of expression here in Tunisia, it is dead…I am forbidden from medicines to cure my illness and from other rights. Seven years and six months is a long period to spend within a dark and gloomy small place. Officers find pleasure to torture me [sic]”

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This article was originally published on Open Democracy, as a part of a week-long series on the future digital freedom guest-edited by Index

Threats to digital freedom are growing just as the number of people accessing the internet is taking off, with millions more likely to join the digital world through mobiles and smartphones in the coming years.

The range of challenges is wide: from state censorship, including firewalls and the imposition of network or country-wide filters, to increasing numbers of takedown requests from governments, companies and individuals, corporate hoovering up of private data, growing surveillance of electronic communications, and criminalisation of speech on social media.

The rapid growth of threats to our digital freedom, in democracies as well as authoritarian regimes, means that the next few years could prove to be a watershed period determining whether the net remains a free space or not. Defending our freedom online means taking action now — beginning with understanding the nature of the threats and who lies behind them.

Governments send mixed messages
In democracies such as the US, UK, Sweden, India or Brazil, governments and politicians will often make stirring calls to defend digital freedom, emphasising that fundamental rights to freedom of expression and privacy apply online as much as off. But faced with temptations, such as the growing technological ease of mass population surveillance — from mobile phones to internet usage, web searches and social media chat — too many governments in democracies are starting to look at the sort of mass gathering of communications data that previously only authoritarian regimes would consider.

This leads to strange contradictions in government policy stances. In the UK, the government has temporarily withdrawn its proposed “snoopers’ charter” (the Communications Data Bill) in the face of swingeing criticism from an MPs’ scrutiny committee and from wider civil society. The Bill in its proposed form would have represented the most extensive mass surveillance of a population’s activities in the digital world of any democracy.

Yet at the same time, the UK along with the US, Germany and many other European countries has stood firm against attempts by China and the Russia, with some support from an array of other countries, to introduce top-down global control of the internet. Instead the UK government, along with many other (though not all) democracies, has argued for the current more “multistakeholder” model where no one body, country or group controls the net. The Indian government wobbled to a disturbing extent on this before refusing to go along with China and Russia at the major international telecoms summit in Dubai last December, in their push for this top down control.

Countries such as China and Iran have, unsurprisingly, been in the vanguard of those trying to build firewalls, block websites, and in myriad ways limit, control and monitor their population’s use of, and access to, the web. Yet the number of countries limiting the internet in some way has grown sharply in the last few years. Some of the limits introduced may seem unimportant, such as the Danish government having a country-wide internet block on their population accessing gaming sites in other countries (not for censorship reasons but to preserve the Danish monopoly on this profitable business). But the more the internet is filtered at network or country level, the less free it becomes.

There will always be arguments why a particular filter is necessary — to tackle child porn, to protect children and young adults from legal adult porn, to tackle crime and terrorism, to stop offence. Filtering and blocking sites always run the risk of over-blocking, of hiding not stopping a problem, and of being used for reasons beyond those stated.

Unless governments stand up for free speech, there can be segments of the public who demand limits on speech that undermine free expression as a fundamental right. One key example of this is the growing sensitivity of many people to offence. Yet there is no right not to be offended, and one person’s offence is another’s honest argument or piece of creative art. In the UK and India, we have recently seen arrests and prosecutions for supposedly offensive comments or photos and other postings on social media (in the case of these two countries relating to the common root of a 1930s English law that criminalised ‘grossly offensive’ phone, and then electronic, communications). There is now growing concern and debate about this criminalisation of mostly harmless social media comment. In the UK the director of public prosecutions Keir Starmer has issued interim guidelines in an attempt to rein in the growing number of such prosecutions.

Corporations as censors
Another disturbing part of this growing set of threats to our web freedom is the role played by corporations. Many web hosting companies and internet service providers state their support for fundamental rights, including free expression, while insisting that they also have to obey the laws of countries they are in. Google and Twitter have led the way in publishing transparency reports showing the number of takedown requests and user data information requests they have received from different governments.

But companies can become complicit in censorship if they take content down too readily in the face of public or government complaints — avoiding the risk of court cases or libel suits, playing safe. Companies such as Facebook or Twitter also set their own terms of service which define what is and is not acceptable usage and behaviour on their platforms. Perfectly normal perhaps — just like a club sets the rules of behaviour of its members.

But when the club, in the case of Facebook, is a billion strong, and its terms of service dictate what types of images and language are and are not acceptable, moreover dictating that anonymity is not allowed, then these are the sorts of constraints on free expression that are usually the preserve of governments to decide — governments that can be held accountable by their citizens (in democracies) and challenged by civil society, in the courts and through the ballot box.

The retention and commercial use of increasingly large amounts of individuals’ data from their internet activities has also sparked an extensive and vital debate about privacy. Privacy online is very often closely intertwined with free expression online: if someone is monitoring what you do or say or gathering it up and exploiting it commercially, that can be a major chill on free speech.

Whether and to what extent there should be a “right to be forgotten” is one part of this debate. Given the pervasive nature of the web, actually deleting individual data is becoming increasingly difficult. At the same time requests to delete individual data from news reports, for instance, is a sort of censorship of the historical record which would be highly undesirable.

Digital freedoms closing down

There are a wide and growing set of threats to our digital freedoms. But there are positive trends too. The rapid, intense and so far successful fight back against various forms of extensive imposition of copyright controls (ACTA, PIPA, SOPA and others) shows this is not a one-way street.

Even in regimes like Iran and China, many ordinary citizens have found ways to evade the censor, to widen their ability to communicate and access information. Governments can be challenged — at least in democracies — if they go down the route of mass surveillance or criminalisation of social media comment. Defending our digital freedom means becoming active, engaging with the arguments, making the case: bad decisions and laws can be stopped, limited or reversed. It is a national and an international debate — and the debate is now on.

The post Gathering clouds over digital freedom? appeared first on Index on Censorship.

Read Index on Censorship’s response to the CPS guidelines on social media prosecutions here

Keir Starmer QC became Director of Public Prosecutions in 2008. A man with a proven record as a human rights lawyer, gaining particular kudos as a free speech advocate for work on the McLibel case and the defence of MI5 whistleblower David Shayler.

But Starmer’s time as the head of the Crown Prosecution Service has coincided with the rise of online social media as a part of everyday life for millions of Britons. The consequent rise in criminal cases against Facebook and Twitter users for “offensive” speech brought under the controversial Communications Act 2003 (article 127) has created a headache for Starmer.

In the face of increasing public unease about the criminalisation of online speech, the DPP launched interim guidelines for prosecutors dealing with social media cases. These guidelines ask prosecutors to take many factors into account: whether the messages investigated constitute actual incitement to violence or harassment, the context in which posts are made, the age of the person being investigated (in the hope of avoiding criminalisation of thoughtless teenagers) and even whether the person was intoxicated at the time of sending an “offensive” tweet.

Index met Kier Starmer recently to discuss the guidelines and the CPS’s role in protecting free speech.

“It’s very important the CPS protects free speech — that’s a given,” Starmer says when we meet at his 9th floor office overlooking the Thames with views from the Shard to St Paul’s:

“The way I see it, the CPS is bound by the Human Rights Act, which enshrines Article 10 [the right to free expression]. So as long as article 10 gets it right, there’s an inbuilt safeguard. I appreciate there are different judgment calls along the way. It’s not always the easiest ride, but there is always that very powerful torch than can be shone on what we do, because we have an adversarial public system.”

Has there been a swift rise in social media prosecutions?

“It is certainly true that there are more cases now then there were a year ago and there were more cases a year ago than there were a year before that. Why that is, is hard to guess really. But we need to keep our feet on the ground here. There is great potential for a large number of cases. With something in the order of 340 million tweets a day you only need a low percentage of those to be grossly offensive and you’ve got a lot of potential cases. But we’re not seeing anything of that order.”

Much criticism has centred on the use of the Communications Act to prosecute cases, specifically section 127, which deals with “menacing” and “grossly offensive” communications. Is the act fit for purpose?

“That raises the interesting question of what the Communications Act was intended to deal with,” clearly warming to a pet topic. “It can all be traced back to an act from 1935 which was intended to protect the staff in telephone exchanges just as people were beginning to use telephones. More people were beginning to use telephones and they wanted to protect exchange staff from, guess what, grossly offensive communications etc.

“Tracing the genealogy is really interesting. The bit in the Communications Act which prohibits false messages if the purpose is to distress others could be traced back to the practice of sending false messages in telegrams when that was the quickest way of communicating with people. People thought it was funny to send false messages and others got distressed as they had no means of checking.”

Perhaps the most infamous case to go to court was the “Twitter joke trial”. The case concerned a tweet sent by trainee accountant Paul Chambers, who joked that he would blow Robin Hood airport in Doncaster “sky high” if his flight to Belfast was cancelled due to bad weather. Some believed that Starmer had personally pursued the issue as a “test case”. The DPP resolutely denies this:

“Absolutely not,” he says. “The case started life in the magistrate’s court with a decision by a local prosecutor and a local police officer. There are 730,000 defendants going through magistrates court every year and there’s no way that we could keep sight of, nor would we want to when there are cases going through.

“The difficulty we ran into with [the appeal against the original verdict] was a very technical one. It was an appeal against the crown court, not against the CPS, so I wasn’t a respondent. There’s been a lot written about this as though it were some great mystique and we were trying to drive it forward at all costs, but it was the opposite. ”

Does Starmer think the game has changed when it comes to free speech and law enforcement?

“The challenge in terms of free speech is quite profound, actually,” Starmer replies. “The reason is that, for better or for worse, over the years, the balance to criminal law for free speech has been held by reference to notions such as ‘place’. Now there’s been debates about whether that’s right or wrong, but what is absolutely clear from all that is that there has always been a protected space for free speech. When you get the development in social media you have something that cuts across all that because ‘place’ doesn’t really resonate in the same way.

“I think it’s a big challenge and I think people should engage with it. I mean, there are some who’ll say ‘well there should just be no regulation’, but if you don’t have that view then you have to think how we address the balance now there is this different way of communicating. The scale and the way in which people communicate is part of that and the ability of people to communicate with many more people than they’ve ever been able to before is quite extraordinary. To connect with tens of thousands, possibly even millions of people.”

So how do we deal with public communication in a whole new space?

“At first there were calls for applying the public order approach, but I was a bit uncomfortable with that because it’s much greater than that.”

But there have been public order arrests for social media posts.

“I’m not saying that’s wrong in those cases,” he says. “But I think we made it clear in the guidelines that public order wouldn’t be your first port of call here, because it is designed really to deal with speech in a different way.”

The crucial question raised in the CPS guidelines is that of context, says Starmer:

“Real-life cases come up, and judgements have to be made. And what has happened over a year or two is an increasing number of these cases coming through… I think, having looked at them that they are very difficult judgement calls because the context is critically important.”

The DPP believes that his interim guidelines should help the public, as well as prosecutors, understand the processes behind cases:

“My view is that it’s far better to have the decision making process mapped out,” he explains, “so that one, the public can see how we’re doing it, and two, the prosecutor can be walked through the decision making process for consistency. [It] allows us to see that the evidence considered is relevant and has made a judgement call on the right basis. And that’s what guidelines like this are designed to achieve.”

What happens if, a year from now, we are still seeing a proliferation of controversial cases? Would Starmer call for a change in the law?

“I will do my very best to make the law workable,” he says. “Before going to parliament, if, despite our best efforts we don’t seem to be able to make it workable, then I might at that stage say, well somebody needs to look at the law. I think that’s how I’d approach it.”

Starmer started and finished our meeting with an appeal for Index readers and supporters to engage in the public consultation on the guidelines, which closes on 13 March. As more of us spend our lives communicating online, it’s important that he, and we, get this right.

Padraig Reidy is senior writer for Index on Censorship. He tweets at @mePadraigReidy

Index on Censorship Social Media Response CPS

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Isadora Faber created Diário de Classe (or “Classroom Diary”) in July 2012 to “show the truth about public schools,” as she writes on the page description, leading her to become an internet celebrity and a teen champion of free speech through new media.

Isadora filled the page with updates on life at Maria Tomázia Coelho School in Florianópolis — capital of the southern state of Santa Catarina — addressing problems in the school including exposed wires, damaged doors, transparency issues and improper teaching practice.

On 17 February, Isadora alerted her 581,000 subscribers to a message published on Diário de Classe’s wall that demanded the fan page be deleted, or Isadora and her classmate Lucas Alves — who also posts content on the website — would end up “with a bullet right on their foreheads”. The children’s parents were also threatened .

The apparent death threat was posted under the profile of teenager Bruna Meneises Silva, which is believed to be a fake one and has been deleted since. Police authorities asked Facebook to provide Bruna’s IP address, so they could trace the person who posted the message.

Isadora’s mother Mel Faber told Index her daughter would never feel intimidated by the threats. “Isadora responds the opposite way. When she’s threatened, she gets more compelled to go public and face her attackers. But I can’t say if that happens because she’s so young and incapable of measuring risks.”

Last November, the student posted a picture of her injured grandmother after her house was allegedly stoned, possibly in retaliation to the Facebook page.

On 22 February, Isadora was ranked by Financial Times in a list of 25 outstanding Brazilians in areas including politics, social work, business, sports, arts and entertainment.

The post Brazilian schoolgirl threatened with death for Facebook page exposing school problems appeared first on Index on Censorship.

The case, brought by aspiring Conservative politician Payam Tamiz against Google*, hinged on whether or not Google was responsible for comments posted on a blog hosted on its Blogger blogging platform. Tamiz claimed to have been libelled by the “London Muslim” blog, which was hosted on the platform. He had approached Google to ask the blogger to remove the defamatory comments. After five weeks, Google did approach the blogger, asking him to delete the alleged slurs, which he duly did. But Tamiz continued to pursue a case against Google.

Tamiz initially lost his case, and, it should be noted, he lost his appeal this week too.

But the ruling on the appeal raises some interesting questions, and could pave the way for future actions against Internet Service Providers.

The key question seems to be what is a respectable time between being told of alleged defamatory publications, and actually becoming responsible for them.

Referring to Byrne v Deane, a 1937 case involving a defamatory note posted on a golf club notice board, the Master of the Rolls, Lord Justice Richards, commented that “[...]it is in my view open to argument that the time taken was sufficiently long to leave room for an inference adverse to Google Inc on Byrne v Deane principles.

“The period during which Google Inc might fall to be treated on that basis as a publisher of the defamatory comments would be a very short one, but it means that the claim cannot in my view be dismissed on the ground that Google Inc was clearly not a publisher of the comments at all.”

The suggestion is that eventually, Google does become responsible for content.

This reads like a threat to the concept of “mere conduit”, the concept enshrined in the European Union e-Commerce Directive establishing that ISPs cannot be held responsible for content on third party blogs, Facebook updates, tweets etc.

That concept is increasingly coming under threat. Just recently, Belfast lawyer Paul Tweed suggested to the Guardian that companies such as Google, Facebook and Twitter could be subject to “EU defamation cases”, in the courts in Ireland, where all three companies have major European bases.

Such a move could seriously threaten the way the web works. We rely on private ISPs to host our various interactions. Making them legally responsible for everything we post could lead to a situation where they severely narrow their terms of service, and even attempt to engage in some kind of censorship in order to avoid litigation. This shift in responsibility is not what the ISPs want, and certainly not what web users need.

*Google is one of Index on Censorship’s funders. Index’s editorial positions are independent of all its funders

The post London court ruling could have grave consequences for free speech online. appeared first on Index on Censorship.

However, despite being off of Facebook, the band’s identity is still being threatened online, as other pages pretending to be Pragaash have now appeared on the social networking site. Two of these were pages that previously existed on Facebook, but have very opportunistically changed their names from previous topics (such as cricket) to the name of the band. One is anti-India while the other anti-Pakistan. Any average user could be fooled into believing that this was indeed the band’s original Facebook page, and that these are their political views.

Meanwhile, three people have been arrested for posting abuse and threats on Pragaash’s own (now removed) Facebook page. They are in police custody until 15 February, and have also been charged under Section 66A of India’s Information Technology Act. The police have indicated that more arrests are on the way.

The Pragaash case yet again raises the question about the increasingly diminishing space for artists to perform their work without fear from any number of outraged and offended groups in India. Recently, an extremely popular actor from South India, Kamal Haasan, had to cut scenes from his latest movie due to major protests by Muslim groups. Around the same time, the Jaipur Literary Festival was mired in controversy when an academic’s remarks offended certain political groups, as Index reported.

In the case of Pragaash, while the guilty parties face arrest due to their abusive language online, there are reports that human rights groups are considering taking action against the offline portion of this controversy. Interestingly, they want to take Kashmir’s Grand Mufti to court for issuing fatwas that project the state of Jammu and Kashmir in a “bad light”.

Mahima Kaul is a New Delhi based journalist. She tweets from @misskaul.

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Guidelines issued by the Crown Prosecution Service today could give greater weight to free speech online by establishing a high threshold for prosecutions for offensive or abusive comments made on social networking sites.

Director of Public Prosecutions, Keir Starmer, has expressed concern over “the potential for a chilling effect on free speech” for prosecuting people who send communications that are “grossly offensive, indecent, obscene or menacing.”

Starmer said that a prosecution was unlikely to be necessary, proportionate or in the public interest if the communication were “swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.”

Prosecutors will now be required to differentiate between such messages and communications that amount to credible threats of violence, a targeted campaign of harassment or those which breach court orders.

The age and maturity of a suspect will also need to be taken into consideration, particularly if they are under 18. The guidelines state that prosecutions of children would rarely be in the public interest, as children may not appreciate the potential harm of their communications.

“We welcome these guidelines and hope that they will be used to end the excessive prosecutions that we have seen in recent years,” said Index CEO, Kirsty Hughes. “In a plural society that respects free expression, there is no right not to be offended, and these guidelines acknowledge that.”

The UK has seen a recent rise in social media prosecutions. In October, Lancashire man Matthew Woods was sentenced to 12 weeks in prison for making “despicable” jokes about missing five-year-old April Jones on Facebook, having pleaded guilty to “sending by means of a public electronic communications network a message or other matter that is grossly offensive” (section 127 (1)a of the Communications Act 2003). Also in October, Azhar Ahmed, who posted on Facebook that British soldiers should “die and go to hell”, was given a community order and a fine.

Paul Chambers, the man at the centre of the Twitter Joke Trial who was convicted in 2010 of sending a “menacing communication” after jokingly tweeting that he would blow an airport “sky high”, told Index: “I’m far more heartened than I expected to be. All the noises coming out of the early discussions suggested that lessons had not been learned, but it appears the DPP has finally taken a step in the right direction.”

He added:

I’d like to know, however, are how this is to be applied to arrests, given that this is more geared towards prosecutions. Users shouldn’t face arrest for the same reasons they shouldn’t face prosecutions in these situations. Secondly, given that the guidelines make mention of users who immediately take down the posts and show genuine remorse, where does this leave Azhar Ahmed, who did exactly that yet still finds himself with a criminal conviction. There should be moves to rescind this immediately.

The guidelines are open to public consultation, which is available on the CPS website and closes on 13 March 2013.

More on this story:

Read the guidelines in full here

Graham Linehan on the Twitter Joke Trial

Padraig Reidy: We cannot keep prosecuting jokes

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Social Media Dpp

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The arrest of a young man on Remembrance Sunday, apparently for posting a picture of a burning poppy, is the latest case of “offensive” online speech being pursued by the law. So yesterday’s panel discussion on the subject at the Internet Service Providers’ Association (ISPA) annual could not have been better timed.

There was an excellent range of speakers on the panel: Keir Starmer QC, the Director of Public Prosecutions, Helen Goodman MP, Labour’s Shadow Culture Minister, Facebook’s Director of Policy Simon Milner, and Index’s CEO Kirsty Hughes. A lot of ground was covered — but the impression left at the end of the session was one that should leave advocates of freedom of speech more than a little trepidation.

Dan Tench, the chair, began by outlining the variety of potential offences — from the increasingly infamous Section 127 of the Communications Act 2003 to the lesser known Malicious Communications Act 1988, the act under which the young man was arrested for his poppy burning picture on Sunday. It was, and is, a somewhat depressing and confusing list of often broadly worded laws: even lawyers struggle with it, so the difficulties of the average Twitter or Facebook user — or even the average police officer — can have in understanding it are hard to overstate. And the law really matters: Keir Starmer was clear (and correct) throughout that the CPS’s job is to prosecute in accordance with this law. Simon Milner was similarly direct: Facebook’s policy is to obey the law. Facebook may be an American corporation, but they’ll follow local laws when dealing with speech: in Germany, for example, laws on Holocaust denial, in the UK, all the multi-faceted laws on offensive speech.

Having said that, the one piece of potentially good news to emerge from the panel was that Keir Starmer announced that his office would be producing interim guidelines covering offensive speech online in the next few weeks. The contents of those guidelines will be interesting — Starmer seemed to suggest that they would outline how the law should apply, and how public interest in a prosecution would be determined. There would not, and indeed should not, be a shift in public policy as a result — though for differing reasons different members of both the panel and the audience would probably like to see that.

That’s where the worry for advocates of free speech should come in. Kirsty Hughes spoke eloquently about the key problems with our current approach, about how what we do in the UK is watched very carefully by those in more repressive regimes and used to justify their oppression, about how there seems to be a growing sense of enforcing some sort of “orthodoxy”, and about how people seem to think they have a right not to be offended. But Starmer, to an extent, didn’t seem to acknowledge that there might be a problem — instead he talked of the difficulty of dealing with delicate issues like the offensive remarks concerning the death of April Jones — while Helen Goodman MP’s approach seemed to be that we hadn’t gone nearly far enough in controlling speech.

That was the most depressing part of the panel. Though she had just returned from the Internet Governance Forum in Baku, and claimed to have been moved by and understood the crucial role played by freedom of speech on the internet in the struggles against oppression in Egypt and Azerbaijan, she didn’t seem to see any connection at all between the control of speech in the UK with the control of speech elsewhere. Freedom of speech, it seemed, was important in other places, but not in the UK. Indeed, the time she showed most emotion was her disappointment to discover that a charge of harassment required a pattern of behaviour, rather than just a single incident.

If the panel is any indication, we can’t expect a great improvement in the treatment of “offensive” speech online — and incidents like the current poppy-burning story can only be expected to recur. I hope that isn’t the case — just as I hope that politicians like Helen Goodman MP can be persuaded to see the importance of freedom of speech in practice as well as in principle. This subject will keep on raising its head until something changes — and free speech advocates should keep on making sure that it does.

Dr Paul Bernal is lecturer in IT, IP and media law at the University of East Anglia. He tweets from @paulbernalUK

READ: Man arrested for Facebook poppy burning picture

Matthew Woods Facebook conviction – we cannot keep prosecuting jokes

Paul Chambers on the Director of Public Prosecutions

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