Scotland’s Offensive Behaviour at Football and Threatening Communications Bill was originally going to be rushed through Holyrood as an emergency bill ahead of the new football season, but it was challenged in the courts in June. As the politicians reconvene to consider the sectarianism bill, a former senior policeman and the Roman Catholic Church in Scotland last week called on the government to postpone the legislation.

The Minister for Community Safety and Legal Affairs, Roseanna Cunningham, introduced the bill as a “a clear signal to the police, the courts, the football authorities and the clubs, and to the fans and the wider public, that offensive and sectarian behaviour around football matches is simply not acceptable. It is time to end this blight on our national game.”

Celtic supporters are traditionally associated with Catholicism and Irish nationalism; fans of Rangers have historic connections with Northern Ireland Protestants and British Unionism. Football chants and songs are often linked to the teams’ supposed Catholic/nationalist and Protestant/unionist divide.

The historically antagonistic relationship between the Celtic and Rangers teams — known collectively as the “Old Firm” — is well known, but observers are divided about its role in religious sectarianism.

The new bill comes in the wake of several football-related incidents: in March, Ally McCoist, Rangers’ assistant manager, and Celtic manager Neil Lennon clashed outside the tunnel, following a match in which three players were sent off. Thirty-four fans were arrested in the ground. In the same month, suspected bombs were sent to the Celtic manager Neil Lennon and two supporters of the club, MSP Trish Godman and Paul McBride QC.

The proposed legislation, a direct response to these events, will cover abusive behaviour in the stadium, pub and online. The maximum prison sentence would be increased from six months to five years. After the bill passed the first stage, it was successfully delayed in late June, following concerns that various issues had not been properly thought through.

Cause for concern?

The Lord Advocate, Frank Mulholland, has tried to assuage concerns about the bill’s implications for freedom of expression by emphasising that facts, circumstances and context determine the offence, but club supporters and civil liberties activists are not persuaded.

Kevin Rooney, a Celtic-supporting teacher, has sympathy for chanting as it is a part of fans’ identity and has “no real substance, in regards to events in Northern Ireland”.

“Old firm fans are becoming the whipping boys for a new breed of intolerance masquerading as anti-sectarianism and this new law is the epitome of this new illiberalism.”

Rooney doesn’t have a problem with anti-Catholic chants sung by Rangers fans either. “If you go to a football match you have to have a thick skin”.

“I’m not saying it’s nice, but it’s life.”

Fans should be allowed to be offensive and sometimes Celtic and Ranger supporters “want the right not to like each other”, he says.

The rivalry has no real significance, in Rooney’s view: the fans go home to intermixed communities and the outcry about football-related sectarian violence is in “inverse proportion to its reality”.

In fact, he claims, there is desire among Celtic fans, who “don’t want to let the club down”, to appear respectable.

The proposed bill is simply part of a “moral panic” instigated by “middle-class do-gooders”, Rooney argues. What’s more, he says, the shape of the legislation has not been properly considered.

His view is supported by Dr Stuart Waiton, sociology and criminology lecturer at the University of Abertay Dundee, and founder of civil liberties blog Take A Liberty (Scotland), who believes certain behaviour at football matches has been wrongly conflated with violent acts.

Writing on The Free Society site, he argues “the Football Bill itself often reads as rather unworldly in its attempts to connect all sorts of social problems and incidents, like domestic violence or the sending of mail bombs, with the chanting of songs at football matches.

“By doing this, time and again the idea that, ‘we must stamp out this sectarianism’ can be repeated almost as a mantra, without any real clarity about what we are talking about.”

Waiton, supported by Rooney and others, has launched a petition against the Bill , with over 1,450 signatures at the time of writing. Waiton’s concern is that the new law will have wider repercussions for the culture of Scotland, “where a form of speech strait jacket will be further tightened”.

Beyond religious hatred

Other critics raise different concerns. Tim Hopkins, director of the Equality Network, was initially worried by the speed at which the bill was being rushed through; the bill’s subsequent extension has allowed his organisation time to conduct a small survey about the its remit.

In his view, the legislation repeats what is already in place under the common law offence of breach of the peace, but it could still provide a useful function, he says. “The value of the bill is to have [the law] clearly stated.” It will “make it easier for police to police [hatred],” he adds. “There can be value in codifying crime into legislation.”

Lilian Edwards, professor of e-governance at Strathclyde University, agrees that common law already governs this type of behaviour. She also points to other statutory measures: “Even if you think common law assault (which definitely makes threats an offence) is too vague for the police to charge (or even plain old breach of the peace), there is statute already quite sufficient”. In UK, for example, there is Section 127 of the Communications Act 2003 and in Scotland, Section 38 of the Criminal Justice and Licensing Act 2010, where breach of the peace also used.

Hopkins has identified a number of problems about the bill’s wording, and would like to see sexual orientation specifically addressed in Section 5 on threatening communications, as well as religious hatred. Amnesty International makes a similar point in its written submission to the Justice Committee: it does not advocate elevating religious hatred above other forms of discrimination.

Freedom of expression

While Amnesty “welcomes efforts to tackle the existence of sectarianism and intolerance in our society”, it also emphasises the ECHR right to freedom of expression. Hopkins is confident, however, that Article 10 will protect citizens’ right to free expression. In accordance with the Scotland Act 1998 , legislation is not law if it conflicts with the European Convention on Human Rights, he explains.

Harmless football chanting is unlikely to be affected, in Hopkins’ view: just as street preachers would have to cross a line for their statements to be considered an offence under common law, there’s a “similar kind of boundary” to what you can and can’t chant, he says.

Dr David McArdle, from Stirling Law School, agrees that the bill would be unlikely to have much effect on freedom of speech because existing laws already govern religious hatred: “The main implication will be that those laws, in whichever form the crown uses them, will be used more robustly — more prosecutions, more custodial sentences, more football banning orders.”

Additionally, he is concerned by the bill’s attempt to “criminalise” singing: “[I] don’t like football, I’m not religious, I’m not Scottish so for the life of me I don’t fully understand what’s going on and I wish all these people would crawl back into their respective holes, but music is an incredibly powerful social phenomenon — that’s why totalitarian regimes are most successful when they can police a culture’s music, literature or art out of existence — and for a mature democracy to seek to prevent people singing songs on the basis that others will find them distasteful or provocative isn’t a route we should be going down.”

The football songs should not be taken too seriously, he says: “If you look at the most high-profile one, The Famine Song: well there’s very little in there which can be properly regarded as offensive – there’s no swearing and you hear far worse week in-week out at grounds down south.” That is not to say there aren’t problems associated with football, he adds, “but it’s in the form of domestic violence, violence against vulnerable groups, knife crime, drink driving and so on”.

Alternatives to legislation

McArdle believes this legislation is unnecessary. In his view, “the robust application of the existing laws in appropriate cases — and a greater degree of proactivity on the part of the clubs themselves than we have seen hitherto — should be the default position”.

“We need to determine what is an appropriate response to ‘fighting words’ but yet more criminal law isn’t it. Abolishing faith-based schools would be a better long-term strategy: it’s not ok that, by the age of five, we have thousands of children every year who know that there’s us, and there’s the other lot. That’s ‘Scotland’s Shame’, and to expect football clubs to deal with the consequences of that is entirely unrealistic.”

Digital policing

And what of the internet? Hopkins pointed out to the Justice Committee that Section 5 on threatening communication makes a distinction between recorded and unrecorded speech. As he told the committee in June, it could create a situation in which “it would not be an offence to say a thing publicly, but it would be an offence if it were written down and reported on the blog of the person who said it, or if the organisation that the person was a member of reported it on its website, or if someone recorded it on a mobile phone and made a YouTube video out of it.” In his view, “that would not make sense”.

Edwards has flagged up other difficulties about the bill’s digital provisions. The Bill applies to “postings, messages etc., displayed in, or primarily intended to be seen in Scotland”, but she is wary of the practicalities of enforcing the law.

An obvious and easy evasion tactic would be to host a sectarian website abroad, she explains, where they would be protected by the US First Amendment. “In such cases it will be almost impossible to get the material taken down whether or not Scots law claims it is criminal,” she says. It would be difficult and expensive for the authorities to find out who the owner of a website was.

“Even if a foreign host was willing to disclose the ID of the person who subscribed to get a website host, it would be very easy to hide that identity by giving false credentials,” she adds. “In short this part of the bill is likely to be completely unenforceable and mainly symbolic.”

The committee has these — and other — problems to address when it re-considers the bill after the summer recess. Even with the time extension, there is a lot of ground to cover.

The Justice Committee will reconvene in September. The bill must pass the Stage 2 deadline by 11 November of this year; it will then be debated by MSPs in the Scottish Parliament. Written submissions and oral evidence given to date are available on the Parliamentary site.

Judith Townend is a freelance journalist and PhD candidate based at City University London. Her blog meejalaw covers digital media law

The post Old Firm sectarianism bill: Free speech threat? appeared first on Index on Censorship.

The High Court has given permission for an American hedge fund manager to serve disclosure orders on three US-based online publishers.

Earlier this month Mr Justice Tugendhat ruled that the operators of WordPress, Wikipedia and the Denver Post could be served with the forms, known as Norwich Pharmacal orders (NPO), in the US — by email.

The billionaire claimant, Louis Bacon, founder and chief executive officer of Moore Capital Management LLP, with offices in both the US and UK, was represented by 5RB barrister Matthew Nicklin, instructed by the London based law firm Schillings.

According to the Guardian newspaper, a spokeswoman from Schillings said that the case was brought in the UK high court rather than a US court, because Bacon had pursued a similar case against a UK-based website host, justhost.com, in 2010.

Bacon claims that the sites have published defamatory material about him, submitted by various anonymous users, including “gotbacon” and “TCasey82″.

Bacon, who was born in the US and owns residential properties in London, the Bahamas and in Colorado, is worth $1.7 billion according to the Forbes World’s Billionaires List, which lists his wealth at number 736 overall and at number 261 in the United States.

According to the Forbes entry, updated in March 2011, Bacon moved back from London to Long Island in New York, where he owns “luxury” properties, including 145-acre Robin’s Island in Peconic Bay. It reports he recently put his property in the Bahamas on sale at $35 million.

Bacon’s estate, Point House Lyford Cay, has proved a goldmine for scandalmongers. In 2010, 54-year-old Dan Tuckfield was found dead (from natural causes) in the financier’s hot tub and Bacon’s “unseemly slanging match” with his neighbour, fellow billionaire Peter Nygard has garnered a string of lurid headlines. In separate proceedings, the hedgefunder and the Canadian fashion mogul are suing each other in the Bahamas Supreme Court. The neighbours’ feud has been at the centre of much online speculation. During a police raid of Bacon’s estate officers confiscated speakers directed at Nygard’s property. According to the Tribune, a Bahamian daily newspaper, Bacon’s estate claimed the acoustic devices merely redirected noise emanating from Nygard’s property and the country’s Minister of National Security later denied speculation they were military grade ultrasonic speakers.

Bacon wishes to use the Norwich Pharmacal orders, named after a House of Lords case in 1974, to force the site publishers to disclose user names, addresses and IP addresses so he can pursue defamation proceedings.

In the judgment, available online, Mr Justice Tugenhat acknowledged: “The difficult question raised by this application is: can a defendant domiciled in the United States of America be served by means of email with a claim form issued in England?”

The judge, without disclosing details of the allegedly defamatory material, found Bacon’s case “passes the threshold of being a good arguable case in defamation” and concluded that civil procedure rules allowed him to order service on the US defendants.

But, he added: “In future claimants should put before the court evidence as to whether that method is permitted by the law of the country in which the claim form is to be served (or a good reason for not doing so), since if it is, service by an alternative method will be unnecessary.”

The Denver Post LLC, publishers of the Denver Post newspaper and its site, and Wikimedia Foundation, the publishers of Wikipedia, could not be reached for comment. Paul Kim, VP User Growth, Automattic, Inc., which publishes WordPress told Index on Censorship:

Our standard response to subpoenas is to forward them to the affected WordPress.com users and give them 10 days to decide if they want to attempt to quash the subpoena.

If they decide not to fight the subpoena, we will release the requested information as required by law.

Automattic has since confirmed that it has “not released any data and are requesting a US subpoena before doing so”.

In correspondence the Wikimedia Foundation said:

Per recent coverage of this issue in the Guardian, you will see that the Wikimedia Foundation has indicated it would comply with an order that is served in the US.  In this case, we have received this order in the US, and we will comply.  We do not typically recognise foreign subpoenas unless we determine there is a serious threat to life or the safety of an individual or group.

We’re not able to comment further on this or other legal situations, however we can say that we take legal matters seriously.  We will comply with requests to release information when we are legally required to do so.

The ruling is timely, as questions are raised about whether Twitter, based in the US, will disclose the identity of users who appear to have contravened the terms of numerous anonymous privacy injunctions obtained in UK courts.

Judith Townend is a freelance journalist and PhD candidate based at City University London. Her blog meejalaw covers digital media law

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The position of the media reporting

A committee investigating the growth of super injunctions and anonymised privacy injunctions has emphasised the need for open justice and public hearings.

Lord Neuberger, Master of the Rolls, formed the committee in April 2010 in response to widespread concern about secret injunctions whose very existence could not be reported.

The committee, which reported its findings at the Royal Courts of Justice on Friday, has made a number of procedural recommendations, such as the creation of a secure database tracking injunctions, and has drafted guidance for injunction applications.

The new procedure, the committee said, would enable the media to be informed about applications in advance.

The committee made a distinction between secret super injunctions, such as those protecting the oil trader Trafigura and the footballer John Terry, and anonymous privacy injunctions for which judgments are publicly available.

While the committee only identified two of the former category since footballer John Terry , the number of anonymised privacy injunctions has increased.

“Injunctions have until early 2010 been granted perhaps a bit too readily,” Lord Neuberger told the assembled media.

Neuberger said the committee was “obviously anxious that hearings take place as much as possible in public”.

Sensitive information could be dealt with by reference to a private document, he said.

Lord Neuberger found the law relating to contempt of court for reporting parliament as “astonishingly unclear”.

Questions were raised following the use of parliamentary privilege to challenge recent privacy injunctions.

On Thursday, the High Court varied the details of a privacy injunction involving the former Royal Bank of Scotland chief executive, Sir Fred Goodwin, after Lord Stoneham used parliamentary privilege to reveal more details about the injunction to House of Lords peers.

In regards to journalists circumventing injunctions by reporting a breach of an injunction in parliament, Lord Neuberger said:

“…I would not to like to pontificate about what the law is a) it does appear to be unclear and b) in due course as a judge I might be asked to rule on what it is and therefore I can’t express a view to you. ”

“It is very unsatisfactory,” he continued. “People should know where they are.”

“Historically the courts and parliament have mutually respected each others’ territory and have worked very well together.

“I have every expectation and certainly every faith that this will continue in relation to this particular topic.”

The Lord Chief Justice, Lord Judge, suggested that the internet might be further regulated for injunction breaches in future:

“I’m not giving up on the possibility that people who, in effect, peddle lies about others through using modern technology may one day be brought under control, maybe through damages, very substantial damages, maybe even through injunctions to prevent the peddling of lies.”

Since the committee hearing took place, Bloomberg Businessweek has reported that lawyers acting for a claimant known as “CTB” have filed papers against Twitter in the High Court in London.

While the document gave no details of the claim, according to Bloomberg, CTB is the set of intials used in CTB v News Group Newspapers Ltd & Anor, involving a footballer and the reality television star Imogen Thomas.

Judith Townend is a freelance journalist and PhD candidate based at City University London. Her blog meejalaw covers digital media law

The post Should press be gagged when reporting parliament? appeared first on Index on Censorship.