This article originally appeared on Comment is Free on guardian.co.uk

Poor practice tends to get in the way of good intentions. During a meeting at the foreign office a few weeks ago, I gently reminded the decent-minded mandarins that they had a problem: Britain’s role in pushing internet freedom, and freedom of expression more generally, was being undermined by our own government departments. Trouble with rioters last summer? Well, go after BlackBerry messengers, David Cameron suggested, until it was pointed out to him that this was exactly the sort of thing the Egyptian and Tunisian regimes tried to do during the Arab spring.

Now, Britain’s parliamentarians, in all their familiar bluster, have come up with a new wheeze: why not order search engines to go on a giant trawl and delete – not only from their searches but from the internet itself – any material that is deemed to invade privacy?

“Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology,” reads the report published today by the joint Lords and Commons committee on privacy and injunctions. Translate these words into Russian or Mandarin and you can imagine the uproar.

Just in case these uppity tech firms don’t get the point, our MPs and peers recommend that if they refuse to censor voluntarily, they should be forced to do so through legislation. Our traditionally insular parliamentarians had, at least, the foresight to acknowledge that such “pro-active monitoring … may not be consistent” with the EU’s directive on e-commerce, but what the heck, why not give it a go?

The government is likely to thank the committee for its deliberations, and then give them a wide berth. In any case, everyone is waiting on Lord Justice Leveson’s hacking inquiry this autumn. The questioning I received in January at the hands of Leveson’s leading QC was more arduous, and informed, than the grand-standing of the committee. I was struck, when giving evidence in parliament in November, by their ignorance about the digital world. One of the few MPs who understands the issues, the Lib Dems’ Martin Horwood, tweeted straight after that session about the “embarrassing rudeness” and “ignorance about internet” from his “colleagues”.

Google (who, to declare an interest, I now advise part-time on freedom of expression) already complies with “take-down” requests by national authorities. However, if the content is legal in another state, it remains visible in that nation. These requests are now listed in a regular “transparency report“. What Google do not do is embark on giant fishing expeditions, acting as the global censor of taste, decency, legality and privacy.

Max Mosley, who successfully sued the News of the World over his privacy – appears to have seduced the committee. Not only have they bought completely his complaints that search engines have failed to erase in perpetuity all “offending pictures” of him, but they nearly bought his idea that all journalists be legally obliged to give prior notification to anyone they might be planning to write or broadcast about. His application was resoundingly thrown out by the European court of human rights – Index on Censorship was among those objecting to the application – but still the committee has recommended that Britain’s new beefed-up press regulator should require prior notification, “unless there are compelling reasons not to”.

The one, and perhaps only, innovative idea in this copious report is to put the onus on newspaper company directors to take responsibility for standards. One of the points that seems to be lost in the phone-hacking privacy maelstrom is that this has been much more a problem of the nexus between politicians, police and media moguls than it is about day-to-day journalism.

It is perhaps no surprise that parliamentarians are no great fans of the fourth estate. It was they who, still smarting after the expenses scandal, sought to exempt the issue from freedom of information scrutiny.

The UK needs a more professional and rigorous regulatory system. It needs executives and non-executives to be held more accountable for their actions. But this country already has some of the most restrictive laws in the democratic world, particularly when it comes to defamation and surveillance.

This report is replete with affirmations about the importance of free expression. MPs and peers talk a good talk, but fail to understand that – while improvements must be made to standards – the only people who benefit from a clampdown are the rich and powerful. Look at Hungary’s hideous new press law, with its statutes on licensing and other measures that some of the witnesses to Leveson have advocated. Look at France, where generations of politicians have claimed privacy to evade scrutiny on their financial misdemeanours. Ask yourself: does our media find out too much or too little about what is done in our name? It is no wonder that our politicians then seek to tame these feral beasts.

John Kampfner is the outgoing chief executive of Index

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A highly-respected international figure, Kirsty will succeed John Kampfner, who leaves at the end of March. She will begin her work in the middle of April, leading a team of 20 in Index’s London office and 12 staff around the world. After he has stepped down as Chief Executive, John Kampfner will join the Index board.

Kirsty’s distinguished career has taken her from Chatham House to the IPPR and the European Commission. More recently, she was head of Global Public Policy and Advocacy at Oxfam. Currently Senior Associate Fellow, at the Centre for International Studies, University of Oxford, Kirsty is also an experienced writer, policy analyst and journalist who has written extensively on European and international politics.

Jonathan Dimbleby, Chair of Index, said: “I am delighted that the trustees have appointed Kirsty from a very impressive shortlist. A passionate advocate of freedom of expression, she has the leadership and vision to take Index to a new level, building on the successes of the past three years under John Kampfner.”

Kirsty Hughes said: “At a time when people around the world are standing up for their right to freedom of expression, often in the most difficult and challenging circumstances, Index has been a vital, internationally renowned, source of news, analysis, argument, campaigning and hope. I am greatly looking forward to working with the Index team and its partners.”

John Kampfner said: “It has been a privilege to play my part in Index’s transformation. I’m thrilled that Kirsty will be my successor and I wish her well in the exciting challenge. I’m very pleased to join the Index board and to continue to fly the flag for a wonderful organisation and all it represents.”

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With the Rugby World Cup rumbling on, the minister put out an SOS for burly forwards. The ball, he said, was just yards from the line. With one more heave, victory would be achieved. The speaker was Tom McNally, the justice minister, as he addressed a conference on libel earlier this month.

McNally should know. He has been leading the government’s bid to change English defamation law which for decades has chilled the free expression of scientists, bloggers, journalists, authors and charities the world over.

On Wednesday that impetus has received one more push: a joint committee of the Lords and Commons has reported back on the draft defamation bill, suggesting a number of important improvements. Though legislation continues to fall short in key areas, step by step parliament is removing the UK’s pariah status. So bad was English law that the US Congress introduced special measures to protect Americans from courts in London, seen as dismissive of the fundamental right to freedom of expression. When the culture select committee published a report on libel, privacy and press standards in March 2010, it described the American move as a “national humiliation”.

Once most MPs didn’t see what the fuss was about. In November 2009, when Index on Censorship and English PEN published their joint report on reforming libel, some suggested there wasn’t much of a problem. But within four months we had persuaded the three main parties to pledge reform in their manifestos. Straight after the election Lord Lester introduced a private member’s bill, adapted into government legislation by Lord McNally.

That bill, welcome as it was, proved deficient in a number of important areas. It failed to raise the bar high enough to prevent large corporations from threatening libel suits in order to stop legitimate investigation – a tactic many newspapers have suffered from.

It needed to do more to protect internet service providers from catch-all demands to take down an “offending” item, even though they may have no role in its posting and be in no position to determine whether or not the demands are simply bullying.

And it should have gone much further in setting out the public interest defence, which is the bedrock of good investigative journalism.

In its six-month review of the bill, the committee of 12 peers and MPs has dissected each area of McNally’s first stab at defamation law. They describe the government’s draft bill as unduly “modest” in ambition, and say that in several aspects it “should provide greater protection to freedom of expression. This is a key foundation of any free society.” They suggest a higher test of “substantial harm” for claimants and a greater defence of responsible journalism and fair comment.

In a boost to academic freedom, they also recommend extending qualified privilege – greater defence – to scientific and other journals. And they follow the recent proposals of Index on Censorship for mediation to bring down the exorbitant and often ruinous costs for individuals defending themselves in libel cases brought by wealthy litigants.

It’s not all good news. Despite the committee’s move towards a stronger public interest defence that will take into account the resources of the publisher (a key issue for bloggers), we still believe there is further to go to ensure that the defence is robust and accessible. And some of the provisions for web forums and social media, particularly concerning anonymous comments, may be problematic.

McNally and his boss, justice secretary Ken Clarke (who seems curiously unengaged in this crucial issue), are expected to respond quickly to the report. We hope they will take the criticisms on board and incorporate the proposals that would beef up the bill. Our libel reform campaign will continue to lobby for change.

The danger to reform is likely to come from another direction. Unwittingly, the Leveson phone-hacking inquiry could do more harm than any of the avaricious law firms desperate to maintain the profits they make from defending oligarchs and sheikhs.

Lord Justice Leveson’s inquiry into just about every aspect of press practice could give ministers the impression that they might as well wait for his conclusions next autumn before doing anything about libel. This would be a terrible mistake – and one the judge himself is keen to avoid. He has made clear, time and again, that he is not looking at the libel law.

With consensus achieved among the parties, and among most (if not all) mainstream legal, media and academic figures, there is now only potential inertia and misunderstanding in the way of a short, clear bill being published straight after next May’s Queen’s speech. Thanks to the committee’s strong scrutinising work, the bill should receive speedy passage through both chambers and make it on to the statute book by next autumn.

McNally needs the impetus of Nick Clegg and David Cameron to push him and the ball over the line. A sorry chapter in English legal history will then be over. A government in desperate search of good news and solid achievements is staring one in the face.

This article was first published in the Guardian

John Kampfner is chief executive of Index on Censorship

SIGN THE PETITION FOR LIBEL REFORM

AN INDEX ON CENSORSHIP, ENGLISH PEN AND SENSE ABOUT SCIENCE CAMPAIGN

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This article first appeared in the Guardian

On virtually any day of the week, if you so fancy, you can attend a conference somewhere in Britain on the state of the media. Even before the Guardian revealed the depravity of the hacking scandal, you could discuss the rights and wrongs of privacy, courtesy of Max Mosley et al; the need to reform our hideous libel laws, which my organisation and others have led; or the relationship between open information and confidentiality, thanks to Julian Assange.

Throw in the long-running discussion about print versus internet, and a veritable industry has been created on the future of the press. With so many people worrying about so much for so long, how did this crisis unfold before our eyes?

Two inquiries will seek answers. The first, which the government claims will have to await the outcome of police criminal investigations, will provide the great drama. Men and women, including some of the most powerful people in the land, may be led into the dock. The extent of corruption in the Metropolitan police will be unearthed. The biggest prize of all, if achieved, will be the emasculating of News International as a political force.

Free expression

The less exciting but just as important investigation will focus on the ethics of journalism. It is likely that a successor will emerge from the ruins of the Press Complaints Commission, a body that in its composition, remit and powers was woefully inadequate from the start.

Senior figures at the PCC became agitated with me for my criticisms, arguing that advocates for free expression should be more supportive. The opposite is true, and demonstrated their lack of understanding of the problem. Free speech is undermined by consistently poor standards and by limp supervision – a point forcefully put by the Commons culture select committee in March 2010.

The PCC, chaired by Lady Buscombe, was a mediation service, not a regulator. Even at the height of last week’s saga, it seemed to have no idea of the scale of the scandal. Its consistent plea over the years that it could intervene only after a complaint was made further eroded its credibility.

Up to this point there is some consensus. Root out and punish this industrial-scale criminality for sure; but then what? Can a strong media ever be whiter than white? And even if one could be created, would it benefit democracy?

In order to unearth wrongdoing, investigative journalism uses a variety of nefarious methods: secret recording and filming, impersonation, trading in “stolen goods”, and, yes, phone hacking. From WikiLeaks, to MPs’ expenses, to documentaries about MPs and lobbyists, to exposing arms trading, some of the most lauded reporters – including on this paper – have pushed the boundaries of legality. The inquiry should be careful about blanket bans.

For some there is an easy answer: stop the redtops plying their grubby trade and focus on political and business journalism and other “respectable” subjects. I would love the tabloids to return to the values of the Mirror of old, before the advent of celebrity and the paps – and we should certainly try – but do we want to replicate the media culture of countries such as France where three or four posh papers are read by a tiny proportion of the population?

The answer, as with privacy and other issues, requires a proper definition (which has so far eluded us) of public interest and accountability. Does a particular investigation serve the public good? That is almost always a subjective judgment. As for accountability, any such activity must on each occasion be signed off by an editor, responsible in law for those actions.

Impose further impediments to investigative journalism and the only people who will benefit are those with power who have something to hide. Hark back to Tony Blair’s illusory weapons of mass destruction or the sharp practices of bankers and ask: do we, as a society, know too much about what goes on or too little?

During the parliamentary debate last Wednesday, a number of MPs showed a creditable sensitivity to the problems. Others are simply chomping at the bit to exact revenge on a profession that has, in their minds, done them in.

Ignore the newfound piety of politicians bemoaning the influence of Rupert Murdoch. Did Blair have to fly halfway round the world in the mid-90s to pay homage? To what degree did some journalists help get some in Downing Street off the hook during the Hutton inquiry? And when that inquiry was published, controversially exonerating Alastair Campbell and others, how did it end up in the pages of the Sun in advance? At each year’s party conference, special seats would be reserved for Rebekah Wade (now Brooks) and her entourage, and she would take hers with the imperiousness of Cleopatra.

As David Cameron argued on Friday, in a vain attempt to deflect attention from his unhealthy links with Andy Coulson, Brooks and the Murdochs, they were all in it together, all these ministers and these editors and proprietors.

It is simply not good enough for politicians to claim they had no choice. They loved it. Labour chose not to deal with media cross-ownership when it had the chance. The Tories sought to wave through television dominance, until being shamed into a rethink.

This was a sordid trade-off in which politicians of all parties were culpable. In return for this humiliation, perhaps a sense of self-loathing, they sought to bully journalists from other stables who had the temerity to ask inconvenient questions. Any consideration of the ethics of journalism should look at the personal links between the Westminster press gallery and spin doctors and advisers. A much more subtle form of corruption has been at play there for decades.

So exactly what kind of media do we want? A new focus on standards, transparency and accountability can only be beneficial. Journalists love to dish it; most of them hate to take it. The industry operates a virtualomerta on exposing its own failings. Private Eye’s Street of Shame column provides a valuable public service in exposing what newspapersdo not publish as much as what they do. Several newspapers operate “non-aggression pacts”, in which they do not report the wrongdoings of their rivals – including revelations of affairs that they would readily publish about people in other walks of life.

Dogged reporting

This broader culture of collusion was one of the most appalling aspects of the phone-hacking scandal. Some of the journalists opining now in print or on Twitter about the evils of Murdoch-land either ignored the Guardian’s dogged reporting or sniped at the newspaper for its “obsessiveness”. Even in recent days, a number of newspapers – not only in the News International stable – tried hard to play down the significance until they were forced to give the story due prominence.

This story has pointed to the many dark corners of journalism. It is also a triumph of journalism. It would be a tragedy if, through the wrong kind of regulation, this kind of tenacious work was now stunted. Thanks to our libel laws, editors have for years advised reporters not to pursue certain people, even when they knew the story would stand up to scrutiny. Causing trouble usually damages cashflow.

This is a tough time to be promoting freedom of expression. You cannot have only the free speech you think is worthy. The instinct now is to tar everyone with the same brush. Even before this scandal happened, the government was looking at tightening controls of the internet. It has been moving towards libel reform with publication of the draft defamation bill; it should not use the past week’s events to dilute planned changes that are already cautious.

No country has the perfect media. The Americans love to scoff at our press standards, pointing to their “fact-checking” as a norm. Yet even that high altar of journalism, the New York Times, has got it terribly wrong on several important occasions. The US culture can lead to self-censorship on sensitive issues, particularly at times of crisis such as after 9/11, and to excessive respect for authority.

I remember wincing at summits when the Americans would stand to attention as president and prime minister walked in, while the Brits sat sullenly in their chairs. I know which I prefer and which is healthier for democracy. The same goes, in different ways, for France. Do we want privacy laws that render every photograph, every action private unless specifically rendered public?

It would be a tragedy if the impetus behind the past week’s events dissipated and, with a few short-term improvements in behaviour, the media returned to its past practices. It would be an equal tragedy if – as a result of both genuine and disingenuous anger – a new culture were developed of dull, hemmed-in journalism that appealed only to an elite.

The task facing the inquiry is to help foster a new journalism as a fearless and painstaking challenge to authority, one that makes mistakes, oversteps the mark, irritates and offends, but that is fully accountable for its actions.

John Kampfner is chief executive of Index on Censorship and author of “Freedom For Sale

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Ahead of tomorrow’s crucial European judgment on privacy and prior notification, we recap Max Mosley and John Kampfner’s recent privacy debate. Are court gagging orders on newspaper exposés an abuse of privacy laws by the rich, or a safeguard against tabloid intrusion into family life?

The press are outraged that they cannot freely report the sex life of anyone vaguely interesting, so they inveigh against the right to privacy. The fact that the Human Rights Act –– under which an entitlement to privacy is enshrined –– was passed by parliament after extensive debate is conveniently ignored. The press like to pretend that the law was invented by judges.

What the press never do, but the judges must, is weigh the public interest (if there is any) in disclosure against the distress which exposure can cause the individual or family concerned. The tabloids will happily destroy a family or cause acute distress to another human being for the fleeting entertainment of their readers. To do this without a real public-interest need is deeply uncivilised. It’s like bear-baiting – quite fun, perhaps, for a certain sort of person, but unspeakably awful for the bear.

Generally, these injunctions are temporary: they hold the ring until a trial decides if the information should be public. They are only given if the judge thinks the complainant will win. Very occasionally the mere fact of an injunction would make the information public. Hence the extremely rare superinjunction.

John Kampfner: commentator and chief executive of Index on Censorship

Max, I respect your tenacity. Having been in the firing line of tabloid sex stories, it is no surprise that you seek a new level of privacy and protection for those in the public eye. Indeed, so committed are you that your attempts to secure for claimants “prior notification” of all media stories are being fought over at the court in Strasbourg. My organisation is one of those opposing you, because we believe your move constitutes an assault on free expression.

The recent spate of superinjunctions is another example. I accept, and I reckon all sensible advocates of free speech also accept, the entitlement to privacy as enshrined in the Human Rights Act – for those who have never put their private lives in the public domain or who do not act hypocritically. But privacy is not the same as secrecy, and what we’re seeing is a new form of law: rich man’s justice pursued in secret.

If only you were right and that superinjunctions were “extremely rare”, and that they merely and temporarily “hold the ring”. They give the man (and, yes, it is almost always a man) a blanket right to concealment for as long as he needs it.

And if you’re an entertainer or footballer “playing away” (superinjunctions are granted almost exclusively to these two types), you would, naturally, not complain about the way the judges are currently interpreting the law. Why would you? You can do what you want – and gag the women, and anyone else, from saying anything to anyone at anytime.

Max Mosley: You say “privacy is not the same as secrecy”, but how can something remain private if it is not kept secret? Once made public, the information is, by definition, no longer private.

The fundamental question is: when should private information be made public, despite the right to privacy? The law’s answer is: when the public interest in its revelation outweighs the need for privacy. I find this reasonable.

The problem comes when a tabloid wants to publish something which may interest its readers but involves no public interest beyond idle or prurient curiosity. This is what the judges are preventing, particularly when publication would cause distress to a family.

It is no doubt annoying for the tabloids to be sometimes deprived of sexual tittle-tattle, but it is hardly an attack on the freedom of the press. No judge will grant an injunction where there is a genuine public interest in publication.

My Strasbourg application hopes to prevent tabloids keeping publication secret until it’s too late to go to a judge. I believe independent judges are more reliable than tabloid editors when it comes to weighing privacy against public interest.

It’s a common misconception that these injunctions are permanent; they are not. They are merely interim orders which stop the private information being made public until a full trial can be held. A so-called superinjunction is only granted on the rare occasion when its mere existence would reveal the information. Unfortunately, legal proceedings in the UK are expensive, but that is no reason to deny them to everyone.

John Kampfner: It seems that we agree on much of the principle, but we disagree fundamentally on the current practice. Yes, privacy is a right under article 8 of the European Convention and now under the Human Rights Act. It should, however, be balanced against article 10, the right to free expression. The problem is that our judges are now interpreting privacy as a catch-all. Anyone who wants to hide anything can lodge last-minute secret applications to judges; invariably they win an injunction and, more invidiously, a superinjunction.

And it’s not all about sex lives. It’s about hiding awkward revelations that might affect the “brand”. Trafigura didn’t want the story of its role in the dumping of toxic waste in Africa made public, so it went to court [to stop the Guardian revealing that it had been debated in parliament]. John Terry‘s lawyers cited his commercial interests as the reasons for his gagging order.

Investigative journalism faces many challenges, not least economic. But the current weight of law is heavily skewed against the public’s right to know, or to use that somewhat pious phrase, holding truth to power. We now are not even allowed to know who is trying to silence whom and about what.

Of course, we will never get the balance entirely right. But I would much rather err on the side of openness than secrecy. If your law succeeds it will set back the cause of free speech by decades.

Max Mosley My law (as you kindly call it) would make no difference to serious journalism. Paul Dacre gave evidence that the press approach their subject in 99 cases out of 100. So the 99 would not be affected by my application. Prior notice is needed to protect the remaining 1% because tabloids maintain secrecy when they suspect publication is illegal. They know that once the story is out, people don’t sue because they end up out of pocket even if they win.

I think you are unfair on the judges. They carefully balance the right to privacy against the right to freedom of expression, as the act requires. And it is not true that anyone with something to hide canThe truth is that nothing which is genuinely in the public interest will be suppressed. get an injunction. The judge has to be satisfied the complainant is likely to win at trial. That’s a very difficult hurdle. As a result, lawyers advise clients not to proceed unless they have a very strong case. Someone who wants to hide something the public should know about will be told not to bother. John Terry’s injunction failed precisely because the judge thought he was protecting his commercial interests rather than his privacy.

Judges are honest, fair-minded and independent. They are not infallible but they can be appealed. As I have said, our privacy is far safer with them than with a tabloid editor.

John Kampfner: If only you were right about our judges. I’m afraid their recent record speaks for itself. Britain has had among the most restrictive libel laws in the developed world. Now, thanks to the Libel Reform Campaign, led by my organisation and our partners, the coalition government is introducing legislation that will go some way (not far enough yet, in our view) to reverse a trend that saw bloggers, authors, scientists, doctors and others all but destroyed for raising important issues at conferences and in print.

No sooner, however, have we stemmed one tide than we are facing these other measures chilling free speech. I repeat: everyone is entitled to a reputation. But we should be talking about protection against serious harm and against malicious falsehood. We should not be talking about laws that protect individuals from embarrassment or inconvenience. I hope that Andrew Marr‘s decision to abandon his superinjunction, and his regret at having sought one out in the first place, might prompt others in public life to think twice before doing so. But, sadly, given the lead our judges are setting, I’m not holding my breath.

The European Court of Human Rights will rule tomorrow (10 May) on  Max Mosley‘s petition to make it a legal requirement for newspapers to inform people in advance that they intend to publish material that may impact on someone’s private life. Read more here

The post Should we scrap superinjunctions? appeared first on Index on Censorship.

This article was first published in The Independent

Just when you think you are over the worst, the forces of secrecy bite back. No sooner had the Government published a draft Defamation Bill, going some way to reversing many of the most hideous aspects of Britain’s libel laws, than the judiciary set a dangerous new precedent.

The recent decision by Mr Justice Tugendhat to grant anonymity to a claimant in a libel case is believed to be the first of its kind. The case, the details of which the media are not allowed to report, concerns a wealthy financier, a multimillion-pound family trust, and lurid allegations online.

I have no interest in the tangled web of people involved; nor, I suggest, do most readers. The trouble is that many legal disputes involve dark and often nefarious acts, which individuals might seek to prevent being exposed. Their interests, naturally, should be taken into account, but these should not override other considerations.

The only true justice is open justice, yet increasingly judges in the UK see the right to secrecy as paramount. Super-injunctions and other gagging orders are being handed out with alarming frequency. These forbid not just the revealing of information, but the revealing of the very injunction preventing the release of that information.

Currently one super-injunction prevents the media from calling someone a banker. I can, by law, say no more than that. Super-injunctions have been used by footballers “playing away” with team-mates’ girlfriends, and by companies who believe their reputations could be damaged by newspapers having the temerity to expose their polluting practices. The most outrageous such case involved the oil trading firm Trafigura. In 2009, Carter Ruck, the solicitors’ firm, warned that a newspaper would be in contempt of court if it published a parliamentary question about the company dumping toxic waste in Ivory Coast. This led to a frenetic meeting in the House of Commons which my organisation, Index on Censorship, convened with MPs furious at the attempt to ride roughshod over the longstanding right to parliamentary privilege.

The conclusion drawn then applies equally now: the rich and powerful will do whatever it takes, aided by certain legal firms, to chill legitimate journalistic and public inquiry. Soon we may see public figures taking out super-injunctions or other requests for privacy to prevent the disclosing of their financial affairs. We would not just be denied the right to know about the detail; we wouldn’t know that the cases even exist.

When we asked the Ministryof Justice how many super-injunctions were in place, we were astonished to be told that they had no idea. They apparently hadnever counted them. In one respect that was understandable. It is not easy to count something that,officially, does not exist.

Unofficial estimates put the number of super-injunctions issued over the last 18 months at around 20. Most of them relate to sex and most of them relate to footballers. Some of these gags fail, most famously in the case of John Terry, who was relieved of the England captaincy as a result of newspaper allegations about an extramarital affair.

A special committee, chaired by the Master of the Rolls, Lord Neuberger, has been looking at the use of super-injunctions. Its findings, due to be published just before Easter, are awaited with interest.

Super-injunctions and other anonymity devices are doing incalculable damage not just to free expression but to the credibility of the legal system.

There are perfectly sound reasons for conventional injunctions to be served – safeguarding evidence deemed unreliable and protecting individuals from blackmail are just two. Perhaps in one or two of the most extreme cases, such as where a vulnerable adult or a child might be imperilled through secondary identification, a super-injunction could be justified. But not otherwise.

There is an important broader debate to be had about privacy. Currently, courts are applying article 8 of the European Convention on Human Rights, which guarantees privacy, with greater determination than they are applying to article 10, which enshrines the right to free expression.

Is everyone entitled to privacy, come what may? Should exceptions be made for public figures whose private actions contradict their public pronouncements, or for public figures who seek commercial gain from one kind of private life, only to lead a different one behind the scenes? Is everyone in public life fair game? These are all valid questions, but even the most stringent interpretation of the right to privacy surely does not require the legal process to be conducted in secret.

For years the English courts indulged the wealthy around the world to come to London to sue charities, scientists, doctors and others for libel. The law was skewed against openness, accountability and legitimate investigation. Thanks in large part to our work on the Libel Reform Campaign, the Government was persuaded to rebalance the law. Just as responsible campaigners do not seek to abolish libel or create a free-for-all for scurrilous and malicious accusations, so they do not deny the fundamental right to privacy. That has to be balanced, however, against the needs of a society to an open justice system. Super-injunctions are but the latest tool to chill free speech.

John Kampfner is chief executive of Index on Censorship twitter@johnkampfner

The cases

1. A leading sportsman won a gagging order after learning that ‘The Sun’ was planning to publish a story that he had been cheating on his partner with two other women. Lord Neuberger said the sportsman’s private life could be “unlawfully exposed”.

2. A married television broadcaster won a court order in 2008 to prevent public discussion of an affair which he believed had led to the birth of a child. The injunction remains although he has received confirmation that he is not the father.

3. A married public figure won a gagging order to hush up his infidelity after claiming it would be “very distressing” for his family . A judge agreed it would breach his human rights after hearing that the woman was demanding substantial sums of “hush money”.

4. A married football manager gained an injunction banning a cuckolded husband from revealing details of his alleged affair with the man’s wife. The manager argued for privacy because he was trying to rebuild his life.

5. A high-profile television presenter secured an injunction stopping his ex-wife writing about their relationship and claims that they had resumed a sexual affair after he remarried. Neither the star nor his ex-wife can be identified.

6. A high-earning footballer won an injunction preventing the reporting of claims of a “sexual liaison, encounter or relationship” with an international female sports star. The injunction banned publication of “private or personal photographs” on mobile phones.

7. A prominent footballer playing in England won an injunction preventing coverage of an alleged blackmail attempt over sex with three women at a hotel, supposedly recorded on a mobile phone.

8. A world famous sportsman – who was not, on this occasion, a Premier League footballer – and who is married, obtained a gagging order preventing the publication of any suggestions

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The revoking of arms licences to Libya and Bahrain won’t last. British firms will be back, argues John Kampfner

This piece first appeared on Comment is Free, Guardian.co.uk.

When Robin Cook tried to tighten rules on British arms sales to dodgy regimes in 1997 he was told by Tony Blair’s team to grow up. Planned changes to criteria for weapons exports were so watered down that they made no inroads into the trade. Cook’s professed “ethical dimension” to foreign policy was stillborn.

Downing Street had been heavily lobbied, but it needed no convincing. This is one area where the boardroom and the unions are in harmony, and one that does not change whatever the government. Britain is a market leader in fighter jets, electric batons, sub-machine guns and teargas. Why add to the jobless total for the sake of morals? If we don’t sell the kit someone else will.

The announcement, therefore, of a revoking of licences to Bahrain and Libya should be taken with a pinch of salt; I predict that British firms will be back at it as soon as the coast is clear.

The coalition government’s commendable, but limited improvements in civil liberties at home have not been replicated in foreign policy, which is brazenly mercantilist. Go forth and flog Britain’s wares is the message. The notorious Export Credits Guarantee Department, responsible for some of the most economically foolhardy and unethical business deals of the past 20 years, has been boosted. From arms sales to Saudi Arabia and Indonesia, to oil and gas pipelines in central Asia, to mega-dams in sub-Saharan Africa, the ECGD has backed projects that have been implicated in corruption, environmental destruction and human rights abuses.

At the weekend, the UK arms industry descended on Abu Dhabi for Idex, the region’s most important weapons fare. A tenth of all the global exhibitors are from Britain. Gerald Howarth, the minister leading the delegation, declared that “we have ambitious plans”.

The most unequivocal message since the election was made by Peter Luff, the defence equipment minister, who told a defence show in June: “There will be a very, very, very heavy ministerial commitment to arms sales. There is a sense that in the past we were rather embarrassed about exporting defence products. There is no such embarrassment in this government.”

Indeed there is not. The regimes currently using brute force to put down pro-democracy protests are all longstanding partners of the UK. As the Campaign Against the Arms Trade notes on Bahrain: in 2010, equipment approved for export included teargas and crowd control ammunition, equipment for the use of aircraft cannons, assault rifles, shotguns, sniper rifles and submachine guns. No requests for licences were refused.

Algeria, Egypt and Saudia Arabia have provided rich pickings for UK arms exporters. Of all the bilateral arrangements of recent years, perhaps the most despicable is the one with Libya. Colonel Gaddafi morphed from terrorist sympathiser to friend of the west, which then turned a blind eye to his internal repression. Libya is regarded as a priority partner, with the UK boasting the largest pavilion at the Libya’s arms fair.

CAAT figures show that in the third quarter of 2010, equipment approved for export to Libya included wall-and-door breaching projectile launchers, crowd control ammunition, small arms ammunition and teargas/irritant ammunition. No requests for licences were refused.

Earlier this month, the trade minister, Lord Green, announced that ministers will be “held accountable” if companies fail to secure deals and foreign investors favour Britain’s economic rivals. Beside him was business secretary, Vince Cable.

In opposition the Lib Dems were vocal about arms sales. In government they have grown silent. In January 2009, Nick Clegg wrote on these pages that Britain should stop supplying Israel following its bombardment of Gaza. He made a broader point: the UK should not supply weapons to countries involved in external aggression or internal repression. I have heard nothing significant from Clegg on the issue since he became deputy prime minister.

He may believe that if he spoke out, he might suffer a similar fate to Cook. There is too much riding on an industry that abets authoritarian regimes, while providing rich profits for UK firms and jobs. In the current economic climate, who would stand in their way?

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Tony Blair would not appreciate being likened to Julian Assange. The feeling would, I am sure, be entirely mutual. Yet there is a link of sorts between these two figures, so controversial in their very different ways. It revolves around the notion of confidentiality.

The lead-up to the former prime minister’s second appearance before the Iraq enquiry has been dominated by the issue of private correspondence. The refusal by the cabinet secretary, Sir Gus O’Donnell, to accede to the request of the committee chairman, Sir John Chilcot, to release the full musings of Blair and ex-president George Bush is based around a question similar to the one relating to the industrial dumping of US State Department documents. When are the musings of individual officials or politicians public documents and when are they private?

In both cases the competing principles of free expression and confidence stumble on each other, head to head. Assange and his allies argue their case mainly around public interest. The world, he insists, should know all the dirty deeds of dastardly diplomats. A more convincing argument in his favour might be that no serious organisation could remotely hope to keep a single email secret if circulated to 2.5m people, as was apparently the case with the US diplomatic service.

As for the Blair/Bush love-in, the case for secrecy is undermined by Blair’s own decision to publish some of the discussions in his memoirs. Furthermore, written memos between world leaders could surely not qualify as “private”. Telephone calls, presumably yes, but not the written word.

As the Daily Telegraph commented in a leader article this week:

The public deserves to get the fullest possible account of why this country went to war on the basis of what turned out to be misleading intelligence. For many, this remains the rawest of issues; if we are ever to put it behind us, the inquiry must be seen to be as thorough and open as possible. Reaching sensible conclusions almost eight years after the invasion began will be difficult enough without the inquiry being fettered in this way.

In the spirit, we are sure, of free expression, a furious Chilcot decided to publish his exchange of letters with O’Donnell. The committee chairman suggests, in quintessential mandarin style, that he would be “disappointed” if Blair proved less forthcoming in his evidence than in his book.

Otherwise, the Telegraph concludes, “it will appear that Mr Blair is happy to breach the confidentiality of office for a lucrative book deal, but not to inform the British public of the process that led him to send our troops to war”.

John Kampfner is the chief executive of Index on Censorship

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This article was first published in Media Guardian

The information genie cannot be put back into the bottle, however hard authorities try. But the authorities continue to exploit the internet as a means of control

WikiLeaks “changes everything”. So says Christian Caryl in the latest New York Review of Books, as the media, technology and foreign policy worlds ponder the effect of the industrial dumping of US government cables. For several years American analysts in particular have been trying to make sense of the information free-for-all facilitated by the internet. Julian Assange‘s perhaps inadvertent contribution is to have brought a previously arcane debate into the forefront of global politics.

So what exactly has the WikiLeaks affair changed? It is just over a month since the third and by far the largest tranche of State Department documents was sprayed into the public domain by a curious mix of techno-anarchist geeks and some of the world’s most prestigious newspapers, including this one. The tensions between WikiLeaks and the Guardian were set out in painful detail in a Vanity Fair article that juxtaposed the values of traditional journalists with those of Assange and his crew.

Assange’s personality has been much trawled over and is, in the long term for journalism and democracy, irrelevant. What matters is what he has done, and what his pursuers are doing, to the related issues of freedom of expression, freedom of information, confidentiality and accountability.

WikiLeaks was, as Ron Deibert pointed out in the New York Times, only a symptom of a much larger trend. Somebody, somewhere, sometime would have done what Assange did. If governments and corporations can hold data about citizens’ intimate details, their friends, their shopping predilections and their innermost thoughts, then it was surely inevitable that the tables would eventually be turned.

The most ridiculous mistake by the US authorities was to imagine that so-called confidential documents – incriminating sources, in some cases – could be kept out of the public domain when circulated to 2.5 million people working in government service. Their British counterparts learnt this long ago when the embarrassing emails of Tony Blair’s team were published during the Hutton inquiry. I have long wondered at the artlessness of some in public life who fail to see that every email, SMS or tweet they write is a publishable document.

The Americans and other governments will not, should not, repeat their errors. Distribution lists will be tightened; monitoring of those with access to truly secret information will be improved. However, as Deibert suggests, the “venomous furore” against WikiLeaks must rank as “one of the biggest temper tantrums” of recent years.

It is more than that. It is deeply dangerous. The hysterical response of many to the WikiLeaks controversy, particularly in the US (the UK government has shown commendable restraint), has played into the hands of the Kremlin, the Chinese Communist party, Robert Mugabe, Burma’s generals and other assorted dictators around the world. Every time now a dissident, activist or blogger is arrested, regimes such as these can wave two fingers at international concern. “You did it, so why can’t we?” will come the response. They are already doing so. The democracy recession, which has been gathering pace in recent years, has been boosted by Hillary Clinton’s laughable claim that the Wiki publications were an “attack on the international community”. This sameHillary Clinton gave a speech a year ago about the possibilities for internet freedom.

So now we have two competing, and ugly, forces locking horns like bulls. On the one side are governments who, as Evgeny Morozov argues in his new book, The Net Delusion: How Not To Liberate The World, are exploiting the internet as a means of control rather than democratisation. They are aided in their endeavours by corporations such as Amazon, Mastercard, Visa and others who do the bidding of the authorities either under pressure or quite voluntarily in order to ingratiate themselves. On the other side is a small sub-section of the web 2.0 community who regard themselves as above the law, for whom all authority is bad and all information is good. As Jaron Lanier puts it in the Atlantic: “The ideology that drives a lot of the online world … is the idea that information in sufficiently large quantity automatically becomes Truth. For extremists, this means that the internet is coming alive as a new, singular, global, post-human, superior life form.”

The bit in the middle – mediated journalism, non-governmental organisations and the more thinking end of the internet generation – is being squeezed. Instead of pugilism on both sides, what is needed is a sober attempt to navigate through a new world in which information is distributed that would have taken conventional investigative journalists years to dig out.

This work is taking place, albeit in an adverse environment. A group called the Global Network Initiative includes some of the big players in the web world such as Google, along with NGOs and other organisations. The aim is to find a path through these problems, but always with an accent on free expression. Clay Shirky, one of the sharpest observers of the scene, talks of a “corrective towards transparency”, before adding: “I don’t, however, believe in total transparency and, even more importantly, I don’t think that independent actors who are subject to no checks or balances is a good idea in the long haul.”

Once the dust has settled, a new and healthier order might emerge, possibly, as Deibert suggests, a “depersonalised and professionalised” son of WikiLeaks acting as a clearing house for investigative journalism. The role of mainstream journalism will shift over time from reporting to sifting, redaction and analysis, helping readers digest the information overload. The problem, Lanier suggests, is that “information in oceanic magnitude can confuse and confound as easily as it can clarify and empower, even when the information is correct”.

The media watcher John Lloyd noted recently that the WikiLeaks affair “reduces investigative journalists to bit players whose job is to redact the output and provide context”. This predates the current saga. For years the Fourth Estate has under-invested in and devalued its responsibility – to use that pious phrase – to speak truth to power. I can never put out of my mind the remark of an old colleague, a one-time lobby journalist at Westminster, who told me after his first week running communications at a government department that he was staggered by how little journalists actually found out. Much of the content of the British media has been reduced to toxic comment or stenography for the powerful in politics, business, sport and elsewhere.

Lloyd has long argued the power of the media is increasing inexorably as politicians cower. In some respects he is right. Self regulation remains poor; standards are often all too low. In the short term it seems that journalists have many of the cards. Whenever something goes wrong, politicians have to deal with it not within a day (as was the imperative when 24-hour TV news began) but now, thanks to Twitter, within minutes.

Thus when Eric Illsley pleaded guilty to expenses fraud, Ed Miliband rushed out of his office to declare that he must stand down immediately as an MP. When Vince Cable was caught “declaring war” on Rupert Murdoch, David Cameron and Nick Clegg had to decide his fate forthwith.

Yet this seeming power shift is transient. Attention spans are brief. Engagement on social networking sites is frantic but shallow, a phenomenon Morozov terms the age of the “slacktivist”. Scream! Sign a petition! Tell your friends you’ve done so. Then move on to the next thing.

Sometimes media activity does have lasting impact. The MPs’ expenses scandal was a mixture of the modern (the handed-over disc) and the old-fashioned (the trawling through of priceless information that was tough to decipher). Not many individuals have been punished, but the reputation of the elected legislature (rightly or wrongly) has been seriously damaged. In this instance, the information was simple to absorb and, thanks to the duck houses, colourful and communicable. It focused on locally or nationally recognisable individuals.

WikiL eaks has not produced any such scalps. Some ambassadors have been embarrassed, others have had to be rotated, but American diplomacy has emerged unscathed. Indeed, one could argue it has emerged enhanced. For sure, some hypocrisy has been exposed, but the caricature of a frothing, gun-toting, CIA-dominated State Department has not quite materialised.

Our expectations towards information have changed, for good. They had probably done so before WikiLeaks, but now, no matter how hard governments try, the genie cannot be put back into the bottle. The notion of a 30-year rule in which patrician officials deign to allow us, long after the protagonists have left the scene, knowledge of what was done in our name, is surely over. Policy making has been demystified.

The information relationship has shifted, but the power relationship has surely not. We have more knowledge, but are we able to, do we have time to, indeed do we really want to act on it? Will our security services now act any differently? Are our banks acting any differently? Once they have sorted out their online filtering system, will our diplomats and governments act any differently? Everything has changed and nothing has changed.

John Kampfner is the chief executive of Index on Censorship and author of Freedom For Sale

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