Today’s impressively short Queen’s Speech contained two nuggets of interest for Index readers. Firstly, there was the mention of intellectual propety:

A further Bill will make it easier for businesses to protect their intellectual property

The debate over copyright and free speech has been fraught, with widespread criticism of governmental attempts to create laws on copyright on the web. (Read Brian Pellot on World Intellectual Property Day here here and Joe McNamee’s “Getting Copyright Right” here.)

This is something the government will have to treat very carefully, and the consultation should be fascinating.

Further in, the speech addressed crime in cyberspace:

In relation to the problem of matching internet protocol addresses, my government will bring forward proposals to enable the protection of the public and the investigation of crime in cyberspace.

Here’s more detail from the background briefing:

The Government is committed to ensuring that law enforcement and intelligence agencies have the powers they need to protect the public and ensure national security. These agencies use communications data – the who, when, where and how of a communication, but not its content – to investigate and prosecute serious crimes. Communications data helps to keep the public safe: it is used by the police to investigate crimes, bring offenders to justice and to save lives. This is not about indiscriminately accessing internet data of innocent members of the public.

As the way in which we communicate changes, the data needed by the police is no longer always available. While they can, where necessary and proportionate to do so as part of a specific criminal investigation, identify who has made a telephone call (or
sent an SMS text message), and when and where, they cannot always do the same for communications sent over the internet, such as email, internet telephony or instant messaging. This is because communications service providers do not retain
all the relevant data.

When communicating over the Internet, people are allocated an Internet Protocol (IP) address. However, these addresses are generally shared between a number of people. In order to know who has actually sent an email or made a Skype call, the
police need to know who used a certain IP address at a given point in time. Without this, if a suspect used the internet to communicate instead of making a phone call, it may not be possible for the police to identify them.

The Government is looking at ways of addressing this issue with CSPs. It may involve legislation.

Eagle-eyed observers will note that this echoes what Deputy Prime Minister Nick Clegg told LBC listeners on 25 April, after announcing that the dreaded Communications Data Bill (aka the “Snooper’s Charter”) was to be dropped. Clegg suggested then that IP addresses could be assigned to each individual device.

As I wrote at the time, “New proposals for monitoring and surveillance will no doubt emerge, and will be subject to the same scrutiny and criticism as the previous attempts to establish a Snooper’s Charter.”

Well, here we are.

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

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On Friday, Google hosted its first Big Tent event in DC with co-sponsor Bloomberg to discuss the future of free speech in the digital age.

Each panel was guided by hypothetical scenarios that mirrored real current events and raised interesting free speech questions around offence, takedown requests, self-censorship, government leaks, national security and surveillance. The audience anonymously voted on the decision they would have made in each case, but as Bill Keller, former executive editor at the New York Times, acknowledged, “real life is not a multiple choice question”. Complex decisions are seldom made with a single course of action when national security, privacy and freedom of expression are all at stake.

The first panel explored how and when news organisations and web companies decide to limit free speech online. Google’s chief legal officer David Drummond said that governments “go for choke points on the internet” when looking to restrict access to particular content, meaning major search engines and social media sites are often their first targets regardless of where the offending content is hosted online. Drummond said that Google is partially blocked in 30 of the 150 countries in which it operates and cited an OpenNet Initiative statistic that at least 42 countries currently filter online content. Much of this panel focused on last year’s Innocence of Muslims video, which 20 countries approached Google to review or remove. Drummond questioned whether democracies like the US, which asked Google to review the video, are doing enough to support free expression abroad.

Mark Whitaker, a former journalist and executive at CNN and NBC, said staff safety in hostile environments is more important in deciding whether to kill a story than “abstract issues” like free speech. Security considerations are important, but characterising freedom of expression as “abstract” and endorsing self-censorship in its place can set a worrying precedent. Bill Keller argued that publishing controversial stories in difficult circumstances can bring more credibility to a newsroom, but can also lead to its exile. Both the New York Times and Bloomberg were banned in China last summer for publishing stories about the financial assets of the country’s premier. This reality means that news organisation and web companies often weigh public interest and basic freedom of expression against market concerns. Whitaker acknowledged that the increased consolidation of media ownership in many countries means financial considerations are being given even greater weight.

The second panel debated free speech and security, with Susan Benesch of the Dangerous Speech Project standing up for free speech, former US Attorney General Alberto Gonzales coming down hard on the side of security, and current Deputy Secretary of Homeland Security Jane Holl Lute backing up Gonzales while recognising the vital role free speech plays in a functioning society.

In the first scenario posed to this panel, audience members were split on whether mobile networks should be shut down when a clear and imminent threat, such as the remote detonation of a bomb, arises. Lute said, “the first instinct should not be to shut down everything, that’s part of how we’ll find out what’s going on,” whereas Benesch focused on the civil liberties rather than surveillance implications of crippling communications networks.

In cases of extremism, which the panel agreed is often more easily and quickly spread via digital communications, Benesch endorsed counter speech above speech restrictions as the best way to defend against hate and violence. 94 percent of the audience agreed that social media should not be restricted in a scenario about how authorities should react when groups use social media to organise protests that might turn violent.

Google’s executive chairman Eric Schmidt closed the event by highlighting what he considers to be key threats and opportunities for digital expression. Schmidt believes that the world’s five billion feature phones will soon be replaced with smartphones, opening new spaces for dissent and allowing us “to hear the voices of citizens like never before”. Whether he thinks this dissent will outweigh the government repression that’s likely to follow is unclear.

Big Tent will make its way back to London next month where Google hosted the first event of its  kind two years ago. The theme will focus on “innovation in the next ten years” with Ed Milliband, Eric Schmidt and journalist Heather Brooke as featured speakers.

Google is an Index on Censorship funder.

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Pakistani schoolgirl Malala Yousafzai, Greek journalist Kostas Vaxevanis, Syrian internet activist Bassel Khartabil and South African photographer Zanele Muholi were honoured at the Index on Censorship Freedom of Expression Awards in London this evening.

The ceremony was hosted by Index’s Chair Jonathan Dimbleby who dedicated the evening to, ‘a celebration of freedom of expression – that fundamental human right to write, blog, tweet, speak out, protest and create art and literature and music’.

Index CEO Kirsty Hughes said: ‘This year’s winners have shown incredible bravery and courage in the face of extreme adversity – they are an inspiration to all of us who value free speech.’

In the keynote speech, actor Simon Callow declared that ‘the price of liberty is eternal vigilance – Index on Censorship pays that price’. Fellow actor Juliet Stevenson also addressed the ceremony saying: ‘the right to free speech depends on speaking about that right and arguing for it – that’s what Index does’.

These were the last awards as Index Chair for Jonathan Dimbleby. He introduced incoming Chair, journalist David Aaronovitch, who said about his new role: “The world is changing rapidly and we are, perhaps more than ever, confused about free expression and in danger of surrendering it. That’s why I am honoured to become Chair of Index on Censorship, which challenges threats to free speech, day in day out.”

THE WINNERS
Doughty Street Advocacy award: Malala Yousafzai
In October 2012, a Taliban gunman shot education campaigner Malala Yousafzai in the head and chest for her activism, as she was returning home from school in Pakistan’s Swat district. After months of treatment, she returned to school in Birmingham earlier this week. The schoolgirl’s father, Ziauddin Yousafzai, accepted the award on his daughter’s behalf saying: ‘I want to give a message to the world. I didn’t do anything special. As a father, I did one thing, I gave her the right of freedom of expression. All fathers and mothers, give your daughters and sons freedom of expression. Freedom of expression is a most important right. The solution of any conflict is to say the right thing, to speak the truth.’

Journalism award sponsored by the Guardian: Kostas Vaxevanis
Greek investigative journalist Kostas Vaxevanis was arrested in October 2012, days after he published the “Lagarde List” of wealthy Greeks with Swiss bank accounts in his weekly magazine Hot Doc. He was found not guilty of breaking data privacy laws in November 2012, but the Athens public prosecutor subsequently ordered a retrial. Accepting the award, Kostas said: ‘Journalism has been either invested with magic powers, or has been blamed for everything. Both positions are wrong. Journalism is the way, lonely most of the times, of truth.’
Read Kostas Vaxevanis’s acceptance speech at Comment is Free

Digital freedom award sponsored by Google: Bassel Khartabil
Palestinian-born Syrian software engineer Bassel Khartabil is a champion of web freedom and a computer engineer, who specialises in the development of open source software. Khartabil has been held in prison in Syria for over a year. Accepting the award on his behalf, his friend Dana Trometer said: ‘Bassel is aware of this award and he would like to thank the judges and audience for trusting him with such an honour. He would also like to pay respect to all the victims of the struggle for freedom of speech, and, especially for those non-violent youths who refused to carry arms and deserve all the credit for this award.’
Read Google’s William Echikson on Bassel Khartabil

Index Arts award: Zanele Muholi
South African photographer and LGBT activist Zanele Muholi challenges traditional perceptions of the black female body — and specifically black lesbians — through her work. She has faced considerable opposition in South Africa where lesbians have been the targets of horrendous hate crimes including murders and “corrective rape”. Dedicating the award to two friends who were victims of hate crimes and later succumbed to HIV complications, Muholi said: ‘To all the activists, gender activists, visual activists, queer artists; writers, poets, performers, art activists, organic intellectuals who use all art forms of expressions in South Africa. The war is not over till we reach an end to ‘curative rapes’ and brutal killing of black lesbians, gays and transpersons in South Africa.’
Read more about Zanele Muholi in the Guardian

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SYRIA

Kerry discussed the situation in Syria with Russian Foreign Minister Sergei Lavrov in Berlin, and he will be meeting members of the Syrian National Council (SNC) at a US-organised conference in Rome. Initially, leaders of the opposition group threatened to boycott the meeting, but had a change of heart after Kerry made strong statements in London on Monday supporting the opposition group’s attempts to oust Syrian President Bashar al-Assad.

Since the start of the country’s ongoing conflict, Syria has faced horrifying human rights violations — with a death toll of at least 60,000 — and journalists attempting to cover the country’s ongoing tragedy continue to be targeted. The Committee to Protect Journalists (CPJ) has named Syria the “most dangerous country in the world for journalists”, with 32 journalists killed since the start of protests in March 2011. Only this week, French freelance photographer Olivier Voisin was killed in Syria’s Idlib province. Two journalists also died last month: French journalist Yves Debay and Syrian-born journalist Mohamed Al-Massalma.

EGYPT

Kerry’s next stop will be post-revolution Egypt, where freedom of expression faces many challenges under President Mohamed Morsi. The country’s new constitution passed in December raised some eyebrows with clauses related to blasphemy (amongst other things). Article 44 of the constitution forbids “defaming all religious messengers and prophets”. New Egypt has been no stranger to blasphemy charges: most recently, novelist Youssef Zeidan was this week accused of blasphemy by the Islamic Research Institute (which seeks for him to be charged under Article 77 of the Penal Code, which could mean a death sentence for the writer).

In further efforts to battle so-called blasphemy, Egypt has made a series of worrisome moves. Earlier this month, a Cairo court ordered a month-long ban on YouTube, since the video sharing site refused to remove the trailer for anti-Islam film the Innocence of Muslims. Since then, Egyptian authorities dropped the ban, since it would be far too costly to actually implement. The film sparked protests across the world last September last year, and following the controversy Egypt sentenced seven Coptic Christian filmmakers connected to the film to death in absentia. Alber Saber, a 27-year-old atheist, is currently appealing a three-year sentence handed to him for allegedly posting a link to the crude film’s trailer on his Facebook page.

In addition to insulting religion, individuals have also faced charges for allegedly insulting Morsi, and novelist Alaa el-Aswany told US-owned Voice of America that the country’s president has even restricted free speech more than his ousted predecessor. Egypt’s answer to the Daily Show’s Jon Stewart, Bassem Youssef, was charged in January with insulting President Morsi, but the investigation was eventually dropped by authorities. According to el-Aswany, ten writers have faced such accusations.

 SAUDI ARABIA

Freedom of expression isn’t a phrase that is likely to be associated with Saudi Arabia. The country came in at number eight on CPJ’s ranking of censored countries around the world. It crushed recent protests held by the country’s Shia population in the Eastern Province, and has  attempted to stop any coverage of it through blocking foreign coverage and arresting local journalists attempting to cover the unrest.  According to Human Rights Watch, hundreds of protesters have also been arrested, and 14 protesters have been killed by security forces. Dissent is not taken lightly in Saudi Arabia: human rights defender Muhammad Al-Bejadi was sentenced on 10 April last year to four years in prison as well as a five-year travel ban for multiple charges in connection to his work.

In the ultra-conservative kingdom, insulting religion also earns a harsh penalty. Saudi writer Turki Al-Hamad was arrested in January after making tweets critical of the politics of some Islamists last December. Al-Hamad’s novels have been banned in Saudi Arabia (and have earned him fatwas from the country’s clerics), as well as Kuwait and Bahrain. Columnist Hamza Kashgari was arrested last February for blasphemy — a charge that carries the death sentence — for controversial tweets he made in February about the Muslim prophet Muhammad. While Kashgari attempted to flee Saudi Arabia to Malaysia, he was extradited back to his native country, and is still in prison while waiting for a trial. It’s no surprise that Saudi Arabia has called for “global internet regulation” in the name of “public order” in the past.

TURKEY

In the past few months, Turkey has shown that it still has a long way to go when it comes to freedom of speech. Article 301 of Turkey’s constitution makes it illegal to insult “Turkey, the Turkish nation, or Turkish government institutions”.  Free speech organisation Turkish PEN is currently undergoing an investigation for “insulting the state” for issuing a statement against the arrest of pianist Fazil Say, who is currently facing charges for retweeting a statement deemed to be insulting towards religion.

The country also has a number of journalists and writers in prison. According to CPJ, Turkey has hit an all-time high of imprisoned journalists, with 49 in prison as of 1 December last year. Most of there are ethnic Kurds, charged under the country’s vague and problematic anti-terror laws.

UNITED ARAB EMIRATES

Despite a flourishing international reputation, the United Arab Emirates has performed poorly when it comes to freedom of expression. Most recently, the illusion of its commitment to academic freedom was shattered after the London School of Economics (LSE) cancelled a conference scheduled to be held this week in the country. The LSE cited the barring of academic Dr Kristian Coates Ulrichsen from the country as well as concerns over “restrictions imposed on the intellectual content of the event that threatened academic freedom” as the reasons for the cancellation of the conference, which was organised in coordination with the American University of Sharjah. The UAE boasts a number of foreign university campuses, including Michigan State University, New York University, the Sorbonne, and Middlesex University. Such restrictions only cast a shadow on the integrity of such partnerships.

In addition to restrictions on academic freedom, the UAE has been engaged in a crackdown on activists both off and online. On 12 November, the country’s leader, Sheikh Khalifa bin Zayed al-Nahaya issued a decree making it possible to imprison anyone poking fun at the country’s leadership or any of its institutions online. The country has quickly restricted rights in the name of national security — and according to the Gulf Center for Human Rights (GCHR), 66 activists were arrested in March 2012. According to the country’s authorities, those arrested are tied to Islamic group al-Islah, and whom authorities claim were planning to overthrow the government. Last year, five political activists eventually known as the “UAE 5″ were in prison for eight months after being arrested in April 2011, for posting messages critical of government leaders and policies in a now-defunct online forum called UAE Hewar. Even though the activists were eventually pardoned, Dr Mohammed Al Roken, a human rights lawyer who worked on their case (amongst many others), is currently being held in solitary confinement.

QATAR

The tiny country is mostly known for being the home of news station Al Jazeera, which has been criticised for its lack of coverage of stories within Qatar. Most recently, Qatari poet Mohammed al-Ajami had a life sentence reduced to fifteen years this week. He was first handed a life sentence in December for insulting the country’s Emir Sheikh Hamad al-Thani late last year, for a poem he uploaded in 2011 supporting the revolutions within the Arab world — where he called the leaders of the region ”indiscriminate thieves”.

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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

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Government officials, as well as members of different political societies were represented at the first meeting on Sunday.

Bahrain’s King Hamad re-opened the door for dialogue in January this year, calling on “representatives of the political societies and independent members of the political community.”

The fresh round of talks, however, has been met with scepticism from some activists.

“The level of distrust between the rulers of the country and the people is so vast, the history of broken promises, and the false pledges of reform make it very difficult to take any state initiative seriously,” campaigner Ala’a Shehabi told Index.

Bahrain has previously made elaborate promises to reform, through initiatives like the Bahrain Independent Commission for Inquiry (BICI), an independent commission initiated by the king to investigate human rights violations following the start of unrest in 2011.

Such efforts, however, have been condemned by rights groups and activist for being more about repairing Bahrain’s shattered international reputation — tarnished by a brutal clampdown on dissent — than it is about an actual interest in reform. Making it no surprise that a renewed call for dialogue has not quelled plans to protest on 14 February.

Maryam Alkhawaja, acting head of the Bahrain Center for Human Rights

Acting president of the Bahrain Center for Human Rights (which won an Index on Censorship Free Expression Award in 2012) Maryam Alkhawaja told Index that she worries that the dialogue will be used as a PR move, when “there’s going to be a heavy crackdown on the anniversary or before the anniversary.”

Abdulhadi  AlKhawaja and Nabeel Rajab of BCHR are both currently serving jail sentences for their part in protests against the regime.

According to a report released by the Project on Middle East Democracy, only three of the BICI report’s 26 recommendations have been fully implemented.

Ali Al Aswad, a former member of Bahrain’s parliament and member of opposition party Al-Wefaq party, told Index that “the country will not be stable without real reform”, and emphasised the importance of the government putting into place “confidence building measures.”

Shehabi said that “a serious dialogue would be preceded by the release of political prisoners”, and would involve the removal of the country’s Prime Minister (who has been in power for more than 40 years), as well as “the dissolution of Parliament” in order to “discuss how to form a representative body to write a new democratic constitution.”

Al Aswad emphasised that the results of the dialogue “shouldn’t only be an agreement on paper it should also be reflected in the constitution”. He also said that any constitutional changes should be voted on with a referendum.

Still, human rights violations, according to local human rights organisations, are still ongoing in the troubled gulf kingdom. BCHR says that there have been 87 deaths at the hands of security forces since the start of unrest; compared to the initial 30 documented in the BICI report.

For Alkhawaja, human rights “should not be seen as a part of the negotiation” emphasising that human rights “should not be used as a bargaining chip at all”,

While human rights groups will not be a part of the dialogue, US-based organisation Human Rights First emphasised that “Bahrain’s ongoing crisis must be anchored in full respect for human rights”.

According to the state-owned Bahrain News Agency, meetings will be held twice a week, and no high-level government officials have been named as participants in the process.

Sara Yasin is an Editorial Assistant at Index. She tweets from @missyasin.

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Ronald Dworkin, 1931 – 2013

Index on Censorship was founded in the first conviction: that freedom of speech, along with the allied freedoms of conscience and religion, are fundamental human rights that the world community has a responsibility to guard. But that strong conviction is suddenly challenged not only by freedom’s oldest enemies — the despots and ruling thieves who fear it – but also by new enemies who claim to speak for justice not tyranny, and who point to other values we respect, including self-determination, equality, and freedom from racial hatred and prejudice, as reasons why the right of free speech should now be demoted to a much lower grade of urgency and importance.

In part, this new hostility reflects reluctance to impose Western values on alien cultures. Free speech may be important within our own secular traditions, some critics say, but it would make no sense to graft it on to very different styles of life. We cannot reasonably ask peoples whose entire social structure and sense of national identity are based on the supreme authority of a particular religion to permit what they believe to be ridicule of that religion within their own borders.

How can we expect people who are committed to a particular faith, as a value transcending all others, to tolerate its open desecration? John Stuart Mill’s argument On Liberty says that we should tolerate even the speech we hate because truth is most likely to emerge in a free intellectual combat from which no idea has been excluded. People with passionate religious convictions think they already know the truth, however, and they can hardly be expected to have more confidence in Mill’s doubtful epistemology than in their own bibles. Nor could Mill’s optimism justify, even to us, tolerating everything that those who believe free speech is a basic human right insist should be tolerated. Pornographic images hardly supply “ideas” to any marketplace of thought, and history gives us little reason for expecting racist speech to contribute to its own refutation. If freedom of speech is a basic right, this must be so not in virtue of instrumental arguments, like Mill’s, which suppose that liberty is important because of its consequences.

It must be so for reasons of basic principle. We can find that basic principle, moreover. We can find it in a condition of human dignity: it is illegitimate for governments to impose a collective or official decision on dissenting individuals, using the coercive powers of the state, unless that decision has been taken in a manner that respects each individual’s status as a free and equal member of the community. People who believe in democracy think that it is fair to use police power to enforce the law if the law has been adopted through democratic political procedures that express the majority’s will.

But though majoritarian procedures may be a necessary condition of political legitimacy, they are not a sufficient condition. Fair democracy requires what we might call a democratic background: it requires, for example, that every competent adult have a vote in deciding what the majority’s will is. And it requires, further, that each citizen have not just a vote but a voice: a majority decision is not fair unless everyone has had a fair opportunity to express his or her attitudes or opinions or fears or tastes or presuppositions or prejudices or ideals, not just in the hope of influencing others, though that hope is crucially important, but also just to confirm his or her standing as a responsible agent in, rather than a passive victim of, collective action. The majority has no right to impose its will on someone who is forbidden to raise a voice in protest or argument or objection before the decision is taken.

That is not the only reason for insisting on freedom of speech as a condition of political legitimacy, but it is a central one. It may be objected that in most democracies that right now has little value for many citizens: ordinary people, with no access to great newspapers or television broadcasts, have little chance to be heard. That is a genuine problem; it may be that genuine free speech requires more than just freedom from legal censorship. But that is hardly an excuse for denying at least that freedom and the dignity it confirms: we must try to find other ways of providing those without money or influence a real chance to make their voices heard.

This argument entails a great deal more than just that governments may not censor formal political speeches or writing. A community’s legislation and policy are determined more by its moral and cultural environment – the mix of its people’s opinions, prejudices, tastes, and attitudes – than by editorial columns or party political broadcasts or stump political speeches. It is as unfair to impose a collective decision on someone who has not been allowed to contribute to that moral environment, by expressing his political or social convictions or tastes or prejudices informally, as on someone whose pamphlets against the decision were destroyed by the police. This is true no matter how offensive the majority takes these convictions or tastes or prejudices to be, nor how reasonable its objection is.

The temptation may be near overwhelming to make exceptions to that principle – to declare that people have no right to pour the filth of pornography or race-hatred into the culture in which we all must live. But we cannot do that without forfeiting our moral title to force such people to bow to the collective judgements that do make their way into the statute books. We may and must protect women and homosexuals and members of minority groups from specific and damaging consequences of sexism, intolerance, and racism. We must protect them against unfairness and inequality in employment or education or housing or the criminal process, for example, and we may adopt laws to achieve that protection. But we must not try to intervene further upstream, by forbidding any expression of the attitudes or prejudices that we think nourish such unfairness or inequality, because if we intervene too soon in the process through which collective opinion is formed, we spoil the only democratic justification we have for insisting that everyone obey these laws, even those who hate and resent them.

Someone might now object that my argument shows, at most, only that free speech is essential to a democracy, and therefore does not show that it is a universal human right that may properly be claimed even in non-democratic societies. We may want to reply, to that objection, that democracy is itself a universal human right, and that non-democratic societies are tyrannies. But we need not rely on that claim, because we can distinguish democracy, as a form of political organization, from the more basic obligation of government to treat all those subject to its dominion with equal concern, as all people whose lives matter. That plainly is a basic human right; and many of the more detailed human rights we all recognize flow from it. And so does a right of free speech. Even in a country ruled by prophets or generals in which ordinary citizens have no real vote, these citizens must nevertheless have the right to speak out, to cry for the attention or to buy the ear of those who will decide their fates, or simply to bear witness, out of self-respect if nothing else, to what they believe to be wicked or unfair. A government that deems them too corrupt or debased or ignoble even to be heard, except on penalty of death or jail, can hardly pretend that it counts their interests as part of its own. It is tempting to think that even if some liberty of speech must be counted a universal right, this right cannot be absolute; that those whose opinions are too threatening or base or contrary to the moral or religious consensus have forfeited any right to the concern on which the right rests.

But such a reservation would destroy the principle: it would leave room only for the pointless grant of protection for ideas or tastes or prejudices that those in power approve, or in any case do not fear. We might have the power to silence those we despise, but it would be at the cost of political legitimacy, which is more important than they are. Any such reservation would also be dangerous. Principle is indivisible, and we try to divide it at our peril. When we compromise on freedom because we think our immediate goals more important, we are likely to find that the power to exploit the compromise is not in our own hands after all, but in those of fanatical priests armed with fatwas and fanatical moralists with their own brand of hate.

First published in Index on Censorship magazine in 1994, and reprinted in 2006

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Sir Hugh was pipped at the post in 2011 as a candidate to be the Metropolitan Police Commissioner, by Sir Bernard Hogan-Howe. Some suggest Sir Hugh’s blunt style may have cost him political support — though he is often labelled the police’s favourite police officer.

Sporting a pink striped tie against a blue striped shirt, Sir Hugh is welcoming, friendly and loquacious in his rather austere office just up the road from Scotland Yard in central London. And as we talk, he is indeed blunt. Some of his comments have a hard edge and he gives the impression of a man who takes no hostages but has a sharp political sense.

Sir Hugh describes ACPO as “the glue that holds national policing together”. From briefing newly elected police commissioners to coordinating national police responses to terrorist threats, it is a wide and demanding brief, not least as chief constables all volunteer, on top of their day job, to lead different areas for ACPO where national coordination is needed. As Sir Hugh told the Leveson Inquiry: “In the absence of a federal model of policing [ACPO] provides a voluntary structure to secure national agreements.”

Human rights and free speech

In the UK, the police are, in theory, part of a system that defends our individual and collective human rights — including the right to free speech, and the freedom of assembly and association. Yet the police’s commitments to human rights in practice is, inevitably questioned as real life events unfold. Meanwhile, parts of the British media and frequently suggest our human rights laws and commitments are undermining common sense policing and democratic decision-making, or risking our security.

Sir Hugh is clear and liberal-sounding on the overarching principle. Free expression and human rights are, he insists, “a function of good policing…human rights are not an impediment to effective policing.”

But there’s a hard underpinning to this view: “Those who want cheap tilts at the Human Rights Act paint it as an impediment; it’s the opposite. We use lethal force — compliant with article two — so it’s flawed to say it’s an impediment.” Article two sets out the right to life, but also allows police to use no more force than “absolutely necessary” to arrest someone or in tackling a riot. This can cover cases where deaths occur. Sir Hugh’s is not a soft defence of the Human Rights Act.

Nor does he see security and police openness in providing information necessarily as trade-offs: “The biggest national threats without question are cybercrime and terrorism” he says. But he thinks transparency, as far as possible, is part of tackling these threats “so you only don’t talk [about them] if you absolutely can’t.”

The harder challenge in policing free expression is where there may be calls to constrain free speech or the right to protest. There are a number of laws that give police the option or even the requirement to step in — some, such as section 5 of the Public Order Act are broadly phrased and mean the police have a lot of leeway (although ‘insulting’ language is now to be taken out of the Act).  Sir Hugh admits frankly that where and whether to constrain rights can be a “nightmare – the first default is to call the police”. He  underlines the importance of discretion in policing and argues “cops tolerate a lot”. He adds: “if we enforced everything, there would be no cops on the streets.”

Having faced the challenges in Northern Ireland of how to manage the right to protest in the face of major community tensions, Sir Hugh is clear that these rights are not absolute: “These are conditional rights not unconditional rights — you can’t just ride roughshod over others….you have to manage that very difficult territory.” When pushed he admits that the tactic of kettling “is pretty hard edged” but adds: “We have used containment in football stadium for decades, and no one complained.”

Public sensitivity to offence is, Sir Hugh thinks, on the rise not least in the context of some recent high profile prosecutions of ‘offensive’ speech on social media: “The expectation of citizens that the police will act if they are insulted has increased, especially if it’s personal and hurtful.” He thinks the interim guidelines issued last December by the Director of Public Prosecutions Keir Starmer, which aim to rein in the number of such prosecutions, will be “helpful” and does not want police time taken up policing “every insulting comment.”

But laws, he insists, are the realm of government: “We don‘t lobby” he says. “We act on laws as the government creates them.”

He says frontline officers “have never been so well trained” and do understand their responsibilities in defending and protecting human rights, and using discretion and judgement. But he thinks “with 20 per cent cuts, training tends to go” – and describes the cuts facing the police as their “biggest challenge”.

Costs can be a key issue for free expression; if there’s a major protest against a play or an exhibition, the policing that may be needed isn’t necessarily provided free. But should we have to pay to have our human rights defended? “As a chief constable” says Sir Hugh “I’d be prepared to have a conversation about it. But it’s not necessarily wrong for someone dealing with a commercial event to make a contribution if others are put at risk because we shift resources.” We have to balance, he says, the human rights principles of the right to be protected with ever more limited resources.

Police and the Press

Sir Hugh is clearly pleased with the findings of Lord Justice Leveson’s inquiry that there were some wrong judgements and decisions by police but no pervasive corruption or lack of integrity. He bristles slightly at the suggestion Leveson let the police off lightly, saying Leveson is a judge who “follows evidence and there is none to leap from individual actions to root and branch failure to police media relations.”

He also argues that most police-media relations have been for the most part unproblematic: “A lot of cops gave evidence to Leveson and the vast majority described an utterly proper professional relationship with the press…and meeting to discuss over tea or a pint of beer is OK, proper and proportionate.” He is not concerned with Leveson’s suggestion that there shouldn’t be off the record briefings: “I think it [‘off the record’] became misunderstood as secret, clandestine, and Leveson was trying to take the heat out of it.” But he insists that there will be briefings that are not for the public or for background context.

He has some sharp words for the press too, emphasising the difference in public trust ratings for police compared to journalists. “If you look at the polls…you see the public feel quite powerless.” The police, he says, deal with victims, such as “people dealing with massive grief and utterly unused to the media” and if there is a public interest in intrusion that is, he thinks, for journalists to justify. But if media behaviour is “horrendous, unfair, then the public must have a right to complain.”

In the end, Sir Hugh thinks the United Kingdom is doing OK compared to other countries in the world: “If you walk outside and talk on the street corner you are very unlikely to get arrested —- isn’t that the point?” The British model, he believes, is built around tolerance, “though that’s not to say sometimes there is not a hard edge.”

Tolerance with a hard edge — perhaps a good summary of Sir Hugh’s approach to policing our rights. But where that hard edge is placed and how it is interpreted on the ground will continue to be a central question for whether free expression and other rights are adequately defended by the police.

 Kirsty Hughes is Chief Executive of Index on Censorship

The post “Human rights are not an impediment to effective policing” appeared first on Index on Censorship.

It was pointed out that since one of the functions of art is to trigger debate, then let’s hear the debate when controversy breaks, instead of it taking place behind closed doors.

Lawyer Anthony Julius said that whilst the paradigm for censorship is the authoritarian state, there are more ambiguous threats to artistic freedom in the UK: “Elements of civil society are coercing the artists, rather than the state.”

Threatened by internal and external forces, arts organisations and institutions artists  are increasingly constrained by diminishing resources, the fear of causing offence, or the threat of police intervention.

Anthony Julius described senior police officer Sir Hugh Orde’s assertion as “weasly words” when the latter claimed that the police are faced with difficult decisions and are not always able do guarantee the safety of those involved in public order incidents generated by contentious art work.  

The conference also heard how corporate sponsorship could curtail arts organisations expense of innovation and risk-taking. Larissa Sansour, visual artist, said that corporates must not regard support for artists as an “extension of their advertising campaigns”.Jeanette Bain-Burnett, Director of the Association of Dance of the African Diaspora, put this in the context of  artists from the Diaspora seeking to promote their work in the UK:

“There are various understandings of the kind of work artists are expected to produce and they change their work either consciously or subconsciously. We mustn’t censor through our role as curator.”

Referring to the fear of causing offence, academic Mona Siddiqui said that we need to be absolutely clear about the need to open up dialogue when artistic expression exposes a head on clash of values: “If artists are concerned about upsetting religious sensitivities, in particular Muslim sensitivity, then we must be clear about this and say so.”

David Lan, artistic director at the Young Vic Theatre, warned about moving towards the “American model” experience where theatre board members are willing to make sizeable financial contributions to the theatre, but also expect more creative input. “They have the skills, yes, but they also have the money.” The effect of this over time, he warned, becomes “quite radical”. While he declined to name the theatre, he did cite an example from the UK:  ‘When it came time to appoint a new artistic director, the board chose a “safe pair of hands” to reduce the amount of risk the theatre was taking.

Anthony Julius suggested that once the board had supported the programme they shouldn’t be able to retreat from that support in the face of controversy. The “what-if” culture leading to self-censorship amongst arts organisations artists was a point observed by a number of speakers. Julius said:

“Artists and the institutions representing them are ruled by counterfactuals and hypothesising. It’s possible to tell yourself horror stories and follow worst case scenarios.”

This cautiousness contributes to a general trend, observed by Erica Whyman, deputy artistic director at the Royal Shakespeare Company, to believe that the arts should only exist to please and entertain. Whyman talked about the importance of producing art that people don’t like. Philosopher Nigel Warburton, who chaired the discussion on self-censorship, highlighted that “there are many points in-between censorship and a reasonable editing process.”

Writer and director Penny Woolcock  called for a stronger support system and legal guidelines for artists and arts organisations.  Index is working with law firm Bindmans to produce such a document.

“Fear and anticipation of trouble mean that the best thing to do is close things down. What can we do to be more protected? There isn’t a support structure of advice network within the arts (community),” said Woolcock, who led the breakout session Artists Speak Out.

Throughout the day short videos of artists talking about work that has been banned or contested were shown. The featured artists show clearly whose voices are more likely to cause controversy are young black men, gay Christian and people with mental illness.  Artists who want to explore tensions within and/or between ethnic minority communities have also encountered censorship.

Despite this, panellists opposed establishing a regulatory system or governing body, fearing it could prove dangerous and restrictive, having a chilling impact on creativity. “There’s a danger of seeing art as something special or privileged when it comes to freedom of expression,” said writer and broadcaster Kenan Malik, arguing this could undermine freedom of expression outside of the arts. “I’m against fetishising artistic freedom of expression. A policy of non interference does not equal indifference.”

Moira Sinclair, Executive Director of the Arts Council, questioned where ownership of such regulation would lie. “Freedom of expression doesn’t come from box ticking and requirements from a piece of paper — it comes from debate, discussion and disagreement.”

A full report of this event will be published on this site soon

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India has around 120 million web users — a large number but still only about 10 per cent of  the country’s population. As cheaper smart phones enable millions more to access the net on their mobiles, India’s net savvy population is set to soar in the next few years. But what sort of online environment they will find is open to question — and to wide debate.

India has some very broad laws that could apply to a wide range of online speech, comment and criticism. These laws have been so far rather randomly applied. But the cases that have arisen — from individuals criticising politicians by email, Facebook or Twitter to some of the big web companies such as Google and Facebook (both facing numerous takedown requests and court cases in India) — show just why India needs to look at limiting both the range of some of its net laws, and to stop these laws criminalising a range of speech.

In 2012, there was widespread outcry in India when two women were arrested for complaining on Facebook about the disruption caused by the funeral of Bal Thackeray, leader of the right wing Hindu party, Shiv Sena. They were arrested under the infamous section 66A of India’s IT Act (2008) which criminalises “grossly offensive” and “menacing” messages sent by electronic means, but also “false” messages sent to cheat, deceive, mislead or annoy, taking online censorship beyond offline laws.

India’s telecom minister Kapil Sibal spoke out against the arrests. And as part of the fallout, guidelines were announced that in future any such charges could only be brought by senior police. But how effective such a restriction might be was challenged, with aTimes of India editorial suggesting “rampant political interference in law enforcement is itself a burning issue…so to argue that senior police officers will always resist mob pressure or political diktats isn’t persuasive.”

Other parts of the IT Act (2008) are also causing a chilling atmosphere in India’s cyber sphere — with new regulations introduced in 2011 obliging internet service providers to take down content within 36 of a complaint (whether an individual, organisation, government body or anyone else) or face prosecution. The law covers a sweeping range of grounds for complaint, including “grossly harmful”, “harassing, “blasphemous” and more. It also is confused on liability – holding intermediaries large and small responsible for content on websites and platforms.

One of India’s leading policy centres on digital issues, the Centre for Internet and Society,  decided to test how this 36-hour takedown rule could result in censorship of innocuous and legal content on web sites. They sent complaints to four main search engines across a range of content — and as a result got thousands of innocuous posts removed; a censor’s dream outcome.

Despite a debate in parliament calling for repeal of the 2011 rules, for now they remain.

Some observers suggest the Indian government is catch-up mode, not fully understanding the reach or nature of social media or how to deal with the international range and speed of the web today — something plenty of other governments around the world are showing some confusion about. Some think the lively debate on net freedom in India reflects the voice and demands of the growing Indian middle class. But whether those demands remain pro-freedom is yet to be seen as internet penetration grows apace.

There are some other encouraging signs. While many in India are not keen at US dominance of key parts of internet regulation, there was concern from business and civil society ahead of the International Telecommunications Union summit in December 2012, when the Indian government looked like it might advocate some form of top down control of the web as an alternative. In the event, India, like the EU and US, did not go along with Russia, China and others keen to include net governance into the ITU’s remit.

India is going to be an increasingly influential voice in global internet debates — with its rapidly growing number of netizens and its increasing clout more widely in a multipolar world.

Its healthy and lively debate about digital freedom stands as a beacon of hope in the face of some of its more disturbing laws. But the laws will need to change, if India is to be a country that stands for internet freedom.

Kirsty Hughes is Chief Executive of Index on Censorship

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