After years of campaigning, we have the chance to pass defamation laws that are fit for the 21st century. We cannot miss this opportunity, says Jo Glanville

This piece originally appeared in the Telegraph

On Wednesday, sooner than anyone anticipated, the defamation bill returns to the House of Commons for report stage and its third reading, before heading to the House of Lords for its further progress through Parliament. Along the way, it’s likely to collide with the publication of the Leveson Inquiry’s report. The final shape of the bill and the recommendations of the inquiry will not only have an impact on the press, but on anyone who writes or shares information – on or offline.

The post A critical autumn for freedom of speech appeared first on Index on Censorship.

Academics worldwide face economic and political attacks that restrict their freedom to challenge convention, says Jo Glanville

This piece was originally published on Times Higher Education

More than 30 years ago, the Index on Censorship published a special issue on academic freedom titled “Scholarship and its enemies”. It included a report on the persecution of scientists in the Soviet Union, an article about the harassment of scholars in Czechoslovakia, a feature detailing how Bantu education in South Africa politicised black students and an account of university education in Libya under the rule of Mu’ammer Gaddafi. Since those once monolithic regimes have now fallen, it is ironic that the article that has dated the least and is even prophetic in its vision of the future is a portrait of the threat to universities in the UK written back in 1981. Anthony Arblaster and Steven Lukes warned that academia, and the freedom of scholars, “is under constant and growing pressure from its paymasters, the local education authorities and, above all, central government. The general tendency of these pressures is towards a crude and debased utilitarianism which sees education as an industry, or a production line whose purpose is to ‘turn out’ persons equipped with the various kinds of skills which the economy and current employment opportunities require”.

A generation on, in the 40th anniversary year of the Index, we have returned to the subject of academic freedom in a special issue, “Censors on campus“. This includes an essay by Thomas Docherty that gives a stark outline of the consequences of the past 30 years on universities in the UK since the first significant cuts to higher education funding took place. It is a sobering sequel to Arblaster and Lukes’ analysis: “the perception of academics as accountable to the requirements of the government of the day rather than the demands of intellectual inquiry has become entrenched: our main priority is to serve business and to do whatever government decides is necessary for the economy”.

All three writers recognise the importance of universities for fostering ideas that dissent from the mainstream and the dangers for democracy as a whole when that space is threatened. For Arblaster and Lukes, that freedom depends on the principle that all decisions and judgements are made on academic or educational grounds; for Docherty, it is a licence that is essential for an open society.

As the international cases published in the special issue illustrate, around the world academics are often at the forefront of challenging authoritarianism and orthodoxy both in their research and in direct political activism. Their protection – and the threats that they face – should receive as much attention as attacks on the press.

Yet although there are many organisations and international bodies standing up for journalists, the defence of academic freedom trails behind. The classification of our various freedoms into special interest groups – whether press or academia – is perhaps part of the problem. It is time to recognise that the protection of academic freedom is as fundamental for democracy as the safeguarding of the press – it is, after all, freedom of expression for the whole of society that is at stake.

Turkey is a particularly strong example of the vital role played by academics and how vulnerable they remain to intimidation. As the distinguished author and translator Maureen Freely demonstrates in her report for Index, the pressure on universities, students and scholars is growing. Academics who dare to explore taboo topics that challenge the nationalist mythology, topics that may range from the Armenian genocide to Atatürk, may damage their careers or even face prosecution. One notorious current case is that of the academic Büşra Ersanlı, who is facing prosecution over links to an “illegal organisation”. She is believed to have been targeted because of her association with the BDP, the Kurdish Peace and Democracy Party, which has seats in the national assembly. As Freely reports, new networks and campaign groups are now emerging to defend students as well as their teachers.

In Thailand, academics are challenging one of the most notorious chills on free speech: the lese-majesty law that criminalises insult to the king. It carries a minimum jail sentence of three years. A group of young law academics at Thammasat University is courageously leading a campaign to reform the law: they have been banned from holding meetings at their own university, and their spokesman, the celebrated lawyer Worachet Pakeerut, was assaulted on campus earlier this year.

These are scholars whose work takes them into the heart of public life, daring to raise questions that challenge the national identity of their culture.

Although the risks facing scholars at home may be less extreme, the same principle is at stake: the space and the licence to challenge convention. Any government that reduces that freedom, whether on economic or political grounds, shrinks the possibilities for a truly open society.

Jo Glanville is outgoing editor of Index on Censorship.

The post Soldiers in the fight for the open society need reinforcements appeared first on Index on Censorship.

The post Libel reform is no joke appeared first on Index on Censorship.

The online retailer has been criticised for profiting from ebooks featuring terror and violence. No one should tell us what to read, says Jo Glanville

Amazon is under fire again, this time for profiting from ebooks on terror, hate and violence. The Muslim Council of Britain has called on Amazon to take “proper responsibility” for the content of books on its site, with one ebook on sale reportedly including images of the Qur’an being burned and a woman being hanged.

All booksellers make money out of books featuring terror or violence whether it’s Homer’s Iliad or JG Ballard’s Crash — but virtual booksellers appear to present a new threat to public morality. Once upon a time, we could rely on traditional publishers to make sound editorial decisions to publish obscenity and gore, now anyone can do it.

The last time Amazon faced an outcry, over a book on paedophilia, it initially defended its actions with some gumption, stating that it was censorship not to sell certain books simply because we or others believe their message was objectionable and that it supported the right of every individual to make their own purchasing decisions. Ultimately, however, the book was withdrawn. A month later, Amazon was reported as having removed incest-themed erotica from its Kindle store. This was the same period in which it pulled WikiLeaks, arguing that the website was in breach of its terms of service and was putting human rights workers at risk.

Amazon’s inconsistency has made it more vulnerable to pressure. Its own guidelines on offensive material state that “what we deem offensive is probably about what you would expect“, which is almost as helpful as the famous US supreme court judgment nearly 50 years ago on hardcore pornography, “I know it when I see it“. While such vagueness may give a wide latitude for freedom of expression, it also means that when there’s enough moral outrage, it may be difficult for Amazon to resist caving in.

Clearer guidelines are needed to protect free speech online and that should include material that causes offence. Expecting virtual booksellers, hosts and publishers to operate as taste and decency police would introduce unaccountable censorship based on subjective criteria. The best-selling erotica Fifty Shades of Grey, which began life on fan-fiction websites, and was first published as an ebook and print-on-demand paperback, might well have failed such a test and deprived the world of the delights of mummy porn.

The famous obscenity trials of the 60s and 70s were only in rare cases about protecting great literature – it was the right to freedom of expression that was at stake, whatever the quality of the content. Shortly before he died, the great writer and barrister John Mortimer (who defended the most celebrated obscenity cases of the time) recalled his famous defence of the editors of Oz magazine in an interview for Index on Censorship. An Oz issue edited by school children was prosecuted under the Obscene Publications Act in 1971; particular offence was caused by a cartoon of a sexually active Rupert Bear. “We weren’t defending anything with any particular merit,” Mortimer told me. “We were defending a principle, I suppose, that you shouldn’t have any censorship, that nobody should tell you what to read or write. It’s entirely your own business.” He believed that it was a principle that, a generation later, had been undermined.

Three years ago, there was an attempt to prosecute a civil servant under the Obscene Publications Act for publishing a violent sexual fantasy online about Girls Aloud. It described the rape, murder and mutilation of members of the pop group – no apparent literary merit here either, but a fantasy and not illegal. The defendant was cleared, but that wise decision hasn’t stopped the continuing skirmishes or the moral panic, which has been encouraged by the government.

The call for censorship and the expectation that online intermediaries police the internet are becoming regular demands. So it’s necessary to reassert that fundamental principle: the right to read anything we like.

Jo Glanville is editor of Index on Censorship magazine

The post Why should Amazon be our taste and decency police? appeared first on Index on Censorship.

• Index on Censorship
• Inforrm
• Press Gazette
• Spiked

If you missed it or want to listen again, the video and audio are embedded below:

The debate was held to mark the launch of the latest issue of the Index on Censorship magazine Privacy is dead! Long live privacy, which includes an interview with Sir David Eady, the High Court judge by legal commentator and writer Joshua Rozenberg. The new issue is available now.

The post Index privacy debate: replay appeared first on Index on Censorship.

Narrow definitions of a bona fide protester smack of Victorian ideals of the deserving poor — Index defends everyone’s right to protest

Brett Lock’s despair at Index’s lack of sophistication raises of one of the great ironies for free speech activists. Many of the landmark free speech cases have been fought in defence of individuals whose ideas, beliefs and attitudes are singularly unattractive. Take the famous Skokie case of the 1970s, when the American Civil Liberties Union fought for the right of neo-Nazis to march through a Jewish neighbourhood. Or the celebrated Oz trial of the same decade. The Oz Schoolkids issue which was prosecuted for obscenity could never be called great literature, but the ultimate success of the case was an important milestone in protecting the freedom of expression of all writers. It is the principle in these cases that matters and that needs defending.

Brian Haw may have some questionable beliefs, but his longstanding presence in Parliament Square became a symbol of protest and of the defence to the right to protest under the last government. Would our critics prefer that Index choose only the most deserving cases? How does one decide who is or isn’t a bona fide protester, worthy of the support of a free speech organisation? Rather than pick and choose the apparently desirable causes and victims, it’s important for Index to be consistent and defend Haw and the Democracy Village. New Labour brought in a chilling number of laws that infringed the right to protest — including the freedom to demonstrate around parliament, and the use of stop and search counter-terrorism legislation — and the coalition government’s commitment to repeal the restrictions around Westminster is to be applauded. The removal of Brian Haw at the state opening of parliament was therefore a worrying moment so early in the life of the new government.

As Bibi van der Zee pointed out in her piece for Index last week, the British have a long tradition of pitching their tents in protest — from Heathrow to road bypasses — on public and private land. And what could be a better spot for making your voice heard than opposite parliament? The legal argument around this case pitches the protesters’ right to free expression against the public’s rights and freedoms to access Parliament Square. But it is surely not the worthiness of the protesters’ cause that should be the central issue here.

Jo Glanville is editor of Index on Censorship and a member of the Ministry of Justice working party on libel reform

The post Defining bona fide protest appeared first on Index on Censorship.

Libel laws remain the most significant daily chill on free speech in the UK. Although there is currently a rare momentum for change, with a select committee inquiry and a number of consultations scheduled or under way, it’s likely that politicians will shrink from the necessary radical reform. The establishment’s ingrained suspicion of the press, coupled with some of the media’s more egregious recent excesses, means that the push for reform may be hamstrung by the fear that this would release the media from all restraint. The smears against Kate and Gerry McCann did not endear the press to anyone.

But this attitude fails to comprehend the true impact of libel on freedom of speech. It also ignores the fact that this is not just about tabloids, broadsheets and the bigger media players. Libel also has a damaging effect on the smaller, but no less significant, players. Some of the most important investigations into corruption and human rights abuse are conducted by non-governmental organisations such as Human Rights Watch and Global Witness, whose work is constantly threatened by libel action.

Independent book publishers routinely factor the spectre of libel into decisions about publishing manuscripts. This is a largely hidden form of censorship: faced with a lawyer’s letter, most publishers have to surrender if they want to stay in business. The book, article or report does not see the light of day — and no one gets to hear about it. This is what Lord Hoffman called ‘the blackmailing effect’, where the mere threat of action, even if a bluff, is enough to inhibit publication.

The key issue is costs. The use of ‘no win no fee’ (conditional fee agreements, or CFAs) has turned libel courts into casinos. CFAs were introduced in 1995 to ensure broader access to justice. But under this system lawyers can charge a 100 per cent uplift on their fees, creating an absurd situation where legal costs can be 100 times the damages awarded.

A recent study by the Centre for Socio-Legal Studies at Oxford University revealed the astonishing fact that the cost of libel litigation in England and Wales is 140 times the average elsewhere in Europe. The introduction of CFAs has clearly had the unforeseen effect of limiting the exercise of freedom of expression in the public interest — and decreasing access to justice for groups that would be ruined by legal action.

English PEN and Index on Censorship have been conducting their own inquiry into the impact of libel this year, talking to editors, lawyers, journalists, publishers, bloggers and NGOs. Such is the concern that media competitors and interest groups who are traditionally suspicious of each other have been prepared to sit down at the same table. There is a strong argument that ‘no win no fee’ is incompatible with the right to freedom of speech under article 10 of the convention on human rights.

The Mirror is making this case in the European court of human rights, having faced a bill of more than £1m after being sued by the model Naomi Campbell in a privacy hearing. Index on Censorship and other NGOs are submitting evidence to the court in Strasbourg in an effort to make the court aware that this is not simply a matter of celebrity or tabloid journalism — it’s about the crippling of reporting in the public interest.

The post This is legal blackmail appeared first on Index on Censorship.

I want to start by looking at two events which I think marked a turning point for free speech — and global attitudes towards it. Both happened last year — coincidentally at the same time.

First, in March, the UN Human Rights Council redefined the role of its special rapporteur on freedom of expression –– declaring that he should monitor abuses of the right to free expression when they form an act of racial or religious discrimination. This has insidiously turned the rapporteur into a potential enemy of the very human right he is supposed to defend: someone whose job is no longer simply to monitor abuses to free speech, but to consider that human right as itself an abuse. At the same time, the council passed a resolution, condemning what it called a ‘campaign of defamation of religions’ and calling on governments to take action.

That very same month, in fact just the day before the resolution on the special rapporteur, the Dutch politician Geert Wilders released his film Fitna online. Wilders — for those of you lucky enough not to know him –– is a platinum blond provocateur — who has made a reputation for himself attacking Islam. He wants Muslim immigration to the Netherlands to be stopped. ‘Islam is the Trojan Horse in Europe,’ he told the Dutch parliament in 2007. ‘If we do not stop Islamification now, Eurabia and Netherabia will just be a matter of time.’ His film Fitna was a crude piece of propaganda –– equating Islam with violence. No Dutch public broadcaster screened it. Although the Dutch Muslim Broadcasting Association did in fact offer to show it –– if they could view it first for illegal content and if Wilders would take part in a debate. But Wilders turned down that invitation. And the Dutch press centre offered too –– but wanted Wilders to pay for security costs. Again he refused.

There were, at the time, apocalyptic predictions of another outcry of Danish cartoons proportions –– but that scenario failed to materialise. The film was a damp squib. Nevertheless, the secretary general of the United Nations, Ban ki-Moon weighed in to the row and described it as ‘offensively anti-Islamic’ — adding for clarity ‘the right of free expression is not at stake here’.

All of this was made all the more pointed by the timing. Last year was the 60th anniversary of the UN Declaration of Human Rights. But here was the global guardian of these rights undermining them. So entrenched has the notion become that that there is a right not to be offended, that neither the secretary general nor the council seemed to feel any need to argue for or justify their position.

And our government, just two weeks ago, reinforced that position when they banned Geert Wilders from coming into the country. I must say though that I was puzzled by Lord Pearson inviting him over now to show the film, nearly a year after the event. I have my suspicions that the Lords may not have known how to watch YouTube.

But the UK government’s reasons for keeping Wilders out –– that his opinions threaten community security and therefore public security –– is also becoming a common refrain when it comes to critics of religion –– a justification for limiting free speech and a powerful argument for censorship.

We saw the same argument, again last year, when Random House dropped The Jewel of Medina. A historical romance about the Prophet Mohammed’s relationship with Ayesha. In a statement, the publisher said that ‘the publication of this book might be offensive to some in the Muslim community, but also that it could incite acts of violence by a small, radical segment’ –– as a result, they would not be publishing the book ‘for the safety of the author, employees of Random House, booksellers and anyone else who would be involved in distribution and sale of the novel’. Now I wouldn’t of course dispute the fact that these are serious considerations that have to be made, but the irony is that it’s this pre-emptive censorship (whether it’s deciding not to publish or to ban someone from coming into the country) which serves to inflame the situation –– because of the publicity that comes with the ban.

But it is the Random House or UN Human Rights Council view that now prevails: potentially offensive speech is so dangerous that it cannot be given a platform. Our liberty is better served by deploying censorship rather than protecting the right to free speech.

This is the Alice in Wonderland world of human rights. Where you the best way to exercise your rights is by having them denied.

One of the most astute writers on this issue, Kenan Malik, has observed that a profound shift has taken place in our attitude to free speech. He has written that it is no longer seen as an inherent good, necessary for expressing moral autonomy, maintaining social progress and safeguarding our other freedoms. It’s come to be seen as damaging: as a problem. And, I would add, it is the voices who want to limit free speech that are now occupying the moral high ground –– not the human rights defenders.

We published a special issue of Index on Censorship last year marking the 60th anniversary of the UN Declaration of Human Rights. And we asked one of the most distinguished international defenders of free speech, Aryeh Neier, to write a piece for us. Neier was for many years executive director of Human Rights Watch. And is now president of the Open Society Institute. Neier was a refugee from Nazi Germany. Yet as head of the American Civil Liberties Union in the 70s, he took a controversial stand on one of the most famous free speech battles of the past 60 years –– the right of neo-Nazis to march through a predominantly Jewish neighbourhood –– a neighbourhood not just of Jews, but of Holocaust survivors. In looking back at that storm, he wrote for Index: ‘Ensuring that all may speak freely, no matter how repugnant their views, prevents the authorities from using the pretext that they are blocking hate speech as a means to censor expression that actually disturbs them for other reasons.’

Standing up for repugnant views can put you in a very uncomfortable position. At Index on Censorship over the past year we’ve had to stand up for racists and Holocaust deniers. My colleague Padraig Reidy was somewhat disturbed to get a Christmas card from one of the leading Holocaust deniers, with a most delightful photograph of Hitler’s favourite apologists at the notorious conference on the Holocaust in Tehran three years ago. And a free DVD with David Irving on the cover in handcuffs. And I’ve had the honour of being described as charming by the BNP.

They think we’re their friends.

We’re not.

But we do know that the discomfort this entails is necessary for a free and open society –– a society that acknowledges the universal right to free speech and doesn’t cut the cloth of human rights to fit the preoccupations and politics of our time.

The post Modern Liberty: free speech must be for all appeared first on Index on Censorship.