It has been around a year since Vietnam did something to maintain the title – Enemy of the Internet – that it shares with eight others that include Uzbekistan, Iran and China. Whilst the communist nation has locked up more bloggers so far this year than throughout all of 2012 it is now revisiting last year’s widely derided, and unrealistic, internet draft decree.
The reworked Decree 72, due to come into force September 1, has caused friction as it essentially prohibits people from posting links to news stories, or sections of news articles, on social media sites such as Facebook or the equally popular, locally produced Zing Me.
Pro-democracy websites or those covering religion, politics or human rights have long been blocked. In 2010, Facebook was blocked. A leaked draft regulation requiring ISPs to block the social networking site circulated at the time. The draft was purported to have come from the government, but its veracity was not confirmed. However, access to Facebook quickly became difficult.
A lack of clear mandate from the government and a low-level block meant that people simply fiddled with the DNS settings and claimed the block was down to technical error, not political will. No one took it seriously and the social media site advertised for local staff even when the block was fully in place.
Professor Carl Thayer at the Australian Defence Force Academy in Canberra says that 2009 saw organisation of disparate groups – Catholics, anti-China factions, environmentalists and democracy activists – using Facebook as a rallying area for their shared opposition to Chinese-run bauxite mines in the Central Highlands, an ecologically and politically sensitive area.
However 72 also has something in common with an earlier blog regulation requiring citizens to stick to the personal, and not political themes. As the internet took off in the early- and mid-2000s Yahoo! chat and its blog platform Yahoo! 360 became hugely popular. By 2008 bloggers numbered in the millions. Most writers followed the government’s instructions, though there were scandals that invloved sex bloggers. The Yahoo! blogs also became useful as an alternate news and information source given the state control of media and blocks on sites related to politics, human rights or religion.
At the end of 2008 new blogging regulations limited writings to personal topics. As with Decree 72 posting links to aleady-banned sites was prohibited. The regulation was aimed only at blogs hosted within Vietnam.
“We have issued the circular aiming to create a legal framework to guide bloggers on what can they do and what they can’t do,” said Do Quy Doan, Deputy Minister of Information and Communication, told dpa at the time. The government in fact approached Yahoo! and Google for assistance.
Despite the furore at the time, not much ever came of the regulation, especially since it was designed more as a “guiding document” according to Doan and thus had limited legal use.
In 2010 part of another regulation was aimed at internet service providers and internet cafes. One point required all public computers — those in net cafes popular with teen gamers or hotel foyers — to install Green Dam, a software programme that monitors internet usage.
Unfriendly though it might have been to the idea of internet freedom, it was an ineffective piecemeal approach that quickly fell by the wayside. Those who own internet cafes, which can be found even in one horse towns and are used mostly by boy gamers, have long required background and family checks in order to open.
However Decree 72 goes further, requiring social media users to abstain from posting any news links, even to articles published by state media.
The government has made the point that this new decree is not about restricting freedom of speech but rather aimed at protecting intellectual property. Whilst news sites and blogs repost many news articles without attribution and plagiarism can be a problem in Vietnam it is not Facebook users who are the prime suspects or problem. Website Bao Moi is one of the big aggregators of news in Vietnam and it is not a social media platform.
Those flouting the new law could be more liable for fines than criminal prosecution. Bloggers are more often charged under Article 88 of the penal code, which relates to “conducting propaganda against the state” and can carry a three to 12 year sentence. Prosecuting those who share links or repost from news sites would strain the court and prison systems and fines are easier to issue, argue some.
Vietnam, which often seems to follow China’s security policy, is second only to the nation in the number of dissidents it has detained — 40 in 2013 to date, according to Human Rights Watch.
Vietnam’s government may be an Reporters Without Borders ‘Enemy of the Internet’ but the populace has embraced it, with over a third of the 90-plus million population online. Without government supporting the infrastructure for such growth it could never have happened. Engagement in the ‘knowledge era’ has always been seen as key and broadband was installed up and down the narrow country years ago.
With greater engagement in the world have come issues the government hasn’t been fully equipped to deal with and the internet is the now the main forum for criticism. Whilst the number of genuinely committed political bloggers may be small, the potential not just for critics to organise online but for citizens to share politically compromising material — such as footage of 3000 security police beating and trying to evict farmers from their village to make way for a multi-million dollar development — is huge.
Decree 72 will be largely unenforceable, outside of making the odd example, but it is more realistic than a draft decree on the internet tabled last year that would have required large companies like Google, Yahoo and Facebook to actually host servers within the country and possibly hand user information over to authorities, if asked. ISPs also would have been responsible for content posted on their sites and users would have been required to sign up for accounts with their real names.
The tabled regulation was seen by the foreign business community as a block to further economic growth and global integration. Even decree 72, which is a watered down iteration is expected to “stifle innovation”, according to the Asia Internet Coalition. What may stifle innovation more however is a full and official block of Google and Facebook. According to persistent rumours this will pave the way for local sites or the Russian-owned Coc Coc, which have servers within Vietnam and are more likely to be amenable to government strictures.
As David Brown, who writes regularly on Vietnam’s affairs, pointed out recently in the Asian Sentinel, Vietnam has plenty of ways to deter or stop the more determined political bloggers, such as imprisoning them for tax evasion as in the case of Dieu Cay. However there is the possibility that this may curtail the spread of information by ordinary citizen bloggers with no strong political commitment.
Professor Carl Thayer at the Australian Defense Force Academy in Canberra has said,
“The Decree will have a chilling effect on ordinary bloggers. It is unlikely to prevent more determined internet activists from continuing to post blogs.”
Most recently the government has been discussing policy regarding free chat apps like Viber or Whatsapp. Cell phones have long had huge market penetration and smart phones have been hugely popular in recent years also. Though the word ‘ban’ has been used in state media reports it is apparently linked to revenue losses for local teclos. There is little further information though how, why and when have not been made clear.
Index on Censorship senior writer Padraig Reidy joined Glenmore Trenear-Harvey, the editor-in-chief of the World Intelligence Review and Isabella Sankey, policy director for Liberty to discuss the nine-hour detention of David Miranda, and reports by Guardian editor Alan Rusbridger of intimidation by UK security forces in the wake of its reporting of leaks by NSA whistleblower Edward Snowden.
The situation with regards to freedom of expression in Germany is largely positive. Freedom of expression is protected by the German Constitution and basic laws. There is room for improvement, with Germany’s hate speech and libel laws being particularly severe.
Germany’s biggest limits on freedom of expression are due to its strict hate speech legislation which criminalises incitement to violence or hatred. Germany has particularly strict laws on the promotion or glorification of Nazism, or Holocaust denial with paragraph 130(3) of the German Criminal Code stipulating that those who ‘publicly or in an assembly approve, deny, or trivialise’ the Holocaust are liable to up to five years in prison or a monetary fine. Hate speech also extends to insulting segments of the population or a national, racial or religious group, or one characterised by its ethnic customs.
Germany still has strict provisions in the criminal code providing penalties for defamation of the President, insulting the Federal Republic, its states, the flag, and the national anthem. However, in 2000, the Federal Constitutional Court stated that even harsh political criticism, however unjust, does not constitute insulting the Republic. The criminal code however remains in place.
Freedom of religious expression is compromised through anti-blasphemy laws criminalising ‘offences related to religion and ideology’. Paragraph 166 of the Criminal Code prohibits defamation against ‘a church or other religious or ideological association within Germany, or their institutions or customs’. While very few people (just 10) have been convicted under the blasphemy legislation since 1969, the impact of hate speech legislation is seen more frequently, in particular in the prosecution of religious offences. In 2006, a pensioner in the state of North Rhine-Westphalia was given a 1-year suspended sentence for printing ‘The Koran, the Holy Koran’ on toilet paper, and sending it to 22 Mosques and Muslim community centres. In 2011, nine of the 18 operators of the far right online radio programme ‘Resistance Radio’ were given between 21 months and three years in prison for inciting hatred.
Germany has also seen heated debate over a widespread ban on religious symbols in public workplaces, especially affecting Muslim women who wear headscarves, which limits, as a result, freedom of religious expression. Half of Germany’s 16 states have, to various extents, banned teachers and civil servants from wearing religious symbols at work. Yet this is not applied equally to all religions, five states have made exceptions for Christian religious symbols.
Media freedom
Government and political interference in the media sector continues to raise concerns for media independence, with several incidents of interventions by politicians attempting to influence editorial policy. In 2009, chief editor of public service broadcaster ZDF, Nikolaus Brender saw his contract terminated by a board featuring several politicians from the ruling Christian Democratic Union. Reporters Without Borders labelled it a ‘blatant violation of the principle of independence of public broadcasters.’ In 2011, the editor of Bild, the country’s biggest newspaper, received a voicemail message from President Christian Wulff, who threatened ‘war’ on the tabloid which reported on unusual personal loan he received.
Media plurality is strong among regional newspapers though due to financial pressure, media plurality declined in 2009 and 2010. Germany has one of the most concentrated TV markets in Europe, with 82% of total TV advertising spend shared among just 2 main TV stations in Germany. This gives a significant amount of influence to just 2 broadcasters and the majority of Germans still receive their daily news from the television.
The legal framework for the media is generally positive with accessible public interest defences for journalists in the law of privacy and defamation. However, Germany still has criminal provisions in its defamation law, which although unused, remain in the penal code. Germany’s civil defamation law is medium to low cost in comparison with other European jurisdictions, places the burden of proof on the claimant (a protection to freedom of expression) and contains a responsible journalism defence, although not a broader public interest defence.
Digital
The digital sphere in Germany has remained relatively free with judicial oversight over content takedown, protections for online privacy and a high level of internet penetration (83% of Germans are online). Germany’s Federal Court of Justice has ruled that access to the internet is a basic right in modern society. Section 184b of the German Penal Code ‘states that it is a criminal offense to disseminate, publicly display, present or otherwise make accessible any pornographic material showing sexual activities performed by, on or in the presence of a child.’ Germany has also ratified and put into the law the Council of Europe’s Convention on Cyber Crimes from 2001. Mobile operators also signed up to a Code of Conduct in 2005, which includes a commitment to a dual system of identification and authentication to protect children from harmful content. This was reaffirmed and made binding in 2007.
There are concerns over the increased use of surveillance of online communications, especially since a new antiterrorism law took effect in 2009.
In 2011, German authorities acquired the license for a type of spyware called FinSpy, produced by the British Gamma Group. This spyware can bypass anti-virus software and can extract data from the device it is targeting. Two reports by the German Parliamentary Control Panel, from 2009 and 2010, stated that several German intelligence units had monitored emails with the amount of surveillance increasing from 7 million pieces items in 2009 to 37 million in 2010. However, Germany’s Constitutional Court ruled in February that intelligence agencies are only allowed to collect data secretly from suspects’ computers if there is evidence that human lives or state property are in danger and the authorities must get a court order before they secretly upload spyware to a suspect’s computer.
Germany’s tough hate speech legislation also chills free speech online. In January 2012, Twitter adopted a new global policy allowing the company to delete tweets if countries request it, meaning that tweets become subject to Germany’s hate speech laws. The latest Twitter transparency report states that German government agencies asked for just 2 items to be removed. In October 2012, Twitter also blocked the account of a far-right German group, Better Hannover, after a police investigation.
Artistic freedom
Artists can work relatively freely in Germany. Freedom of expression in arts is protected under the Constitution, and is largely respected, especially for satire or comedy. Yet, the freedom of expression of artists is chilled through strict hate speech and blasphemy laws.
The German authorities very rarely use blasphemy laws against artists[xiv]. However, there have been several examples of art being subjected to censorship due to religious offence. In 2012, at the exhibition ‘Caricatura VI – The Comic Art – analog, digital, international’ in Kassel, a cartoon created by cartoonist Mario Lars was removed after protests that it offended religious sensibilities.
There is persistent sensitivity around artistic works depicting the Nazi period. In April 2013, the German version of an Icelandic author’s book was ‘censored’ by its publisher, who cut 30 chapters from Hallgrímur Helga’s novel, ‘The woman at 1000°’. Key passages about Hitler, concentration camps and SS were censored to fit the German market.
I don’t have a problem with sending journalists to gaol.
Sometimes we break the law, and sometimes we do it in ways that are not defensible as being in the public interest, or for reasons that are not related to our journalism. I also think it’s okay for the police to detain and question journalists, as they may anyone else. I work on the assumption that we should all, as citizens, respect the rule of law and act within legal constraints – a big part of any journalist’s training covers legal issues around contempt, defamation, confidentiality and copyright.
I don’t even want special protection under the law as a “journalist” because then someone has to decide who counts as one, and as we’ve seen in the UK with the debate over the Leveson inquiry, that quickly ends up with some sort of state-approved licensing mechanism which none of us would find acceptable.
If there is to be protection then it should cover “acts of journalism”, no matter who commits them, and it should by and large rely on case law established by brave people taking risks to make information public and then defending their actions, also in public. As a working journalist I’m prepared to make promises to sources that could result in my spending time in prison, and I respect those of my colleagues who have put themselves on the line to establish the boundaries of acceptable journalistic practice.
Unfortunately, while we in the press have by and large played fair, it’s now clear that the state hasn’t. The revelations about the way the NSA and GCHQ operate have confirmed the view that many agents of the state either consider themselves outside the law or feel confident that the laws have been written to allow them to act in the ways they wish. They make it impossible to respect the law as it stands, and impossible to argue that we as citizens must simply obey laws that have been written to take away our liberty, our freedom to speak without being monitored, and our ability to act to change the world for the better whether by speaking truth to power, telling the world what is really going on, or campaigning in the streets and online to reform laws and practice.
This week’s detention of David Miranda under the UK’s Terrorism Act is a defining point. Miranda may have been carrying digital copies of secret documents made available to Laura Poitras and his partner Glenn Greenwald, but that does not make him a credible suspect in an investigation into terrorism, except to a paranoid state whose laws have been written to allow the security services unfettered power to detain and investigate anything they consider threatening.
But of course, that is what we have. Here in the UK the word “terrorism” has been stripped of all meaning so that it can routinely be used to cover any activity that the state does not fully approve of, or anything that might disrupt the free operation of the security apparatus ostensibly built to protect us from that same “terror”.
As a result many activities, from campaigning to marching to writing to helping uncover a vast, illegal conspiracy to surveil and monitor the entire internet, is covered by provisions of anti-terror legislation passed by frightened legislators willing to be persuaded that such draconian powers would only be used against clearly wicked people planning clearly horrible acts of mass murder. They were unable or unwilling to foresee that it would be used to hound journalists or those working for newsgathering organisation or that it would be used to justify oppression of anyone who stands out against any government policy. This is the security state, and while we may have watched it being assembled brick by brick in the last decade, the final brick snapped into place this week.
It is time for us to call on Obama, Cameron, Clegg and the other architects of oppression to “tear down this wall“. And yes, the irony of finding that I need to quote Ronald Reagan has not escaped me.
Bill Thompson is a writer and broadcaster. This post was originally published at The Bill Blog
I don’t have a problem with sending journalists to gaol.