21 May 2014 | Digital Freedom, European Union, News and features, Politics and Society
You can find support for the public’s right to access official information in the strangest places. Like a private EU policy paper draft. As leaked to and published by the whistle-blowers’ website Wikileaks.
The European Union’s Guidelines on Freedom of Expression Online & Offline started with NGO consultations, but the EU’s top working group on human rights (COHOM) wanted the final drafting work done behind closed doors. Wikileaks thought different and released a leaked draft last month.
Designed to set Europe’s agenda for freedom of expression and media rights, the original draft as leaked promised an EU commitment to the right of access to official information of all kinds. But you won’t find the pledge in the final version, as released by the EU in Brussels last week. It’s been cut.
Not one of the nine new priority areas for EU legislation listed in the final version guidelines supports the adoption of right to information legislation. The document also excludes promotion of access to information rights from its list of “Priority Areas of Action”.
The key deleted reference, Paragraph 14 in the version published by Wikileaks, summarised the principle as the “general right of the public to have access to information of public interest, the right of the media to access information and the right of individuals to request and receive information concerning themselves that may affect their individual rights”. These lines were cut in their entirety.
The original text was in line with an emerging European political and legal consensus that the right to receive official information implies that a state has a positive obligation to make that information available to them. The guidelines have been firmly steered in the opposite direction.
In London, experts blame their own government for setting a bad example. The UK government argues that citizens have the freedom, but not the right, to seek and receive information. On that basis it rejects the idea that there is a positive obligation on its officials to make information available to citizens, only that they should have a good reason for not doing so.
“I’d say that the UK government continues to deny that there is a right to information in any form,” says David Banisar of the free expression rights advocacy group Article 19. What’s changed, he says, is that UK courts are beginning to interpret UK common law in the same way as the European Court in favour of the general principle of a right to request and receive official information.
This threatens the legality of the UK’s habit of giving certain officials immunity from Freedom of Information Act requests under UK common law, even where this is incompatible with European law, as the UK Court of Appeal concluded last month, finding that Attorney General Dominic Grieve acted unlawfully by denying public access to Prince Charles’ official letters to government ministers.
In a similar but separate case Times journalist Dominic Kennedy appealed to the courts when the Charity Commission, the agency that monitors charities in the UK, refused his request under the country’s Freedom of Information Act to see paperwork from its inquiry into the management of maverick politician George Galloway’s Mariam Appeal for Iraq. Last month, after seven years’ deliberations, the courts cleared the way for the Commission to hand over the papers – though they have yet to do so, and it may still take a judicial review to make them.
The ruling in favour of the Times in March came with a similar string of citations from European Court (ECHR) cases that are comfortably in line with this new direction for UK common law. “You can ask for information from a public authority just because it is a public authority and it should act in the public benefit.” Kennedy told the UK Press Gazette after his win.
Kennedy’s lawyer Rupert Earle of Bates Wells Braithwaite says that while the ECHR rulings clearly favour openness, the court’s principal chamber has yet to definitively state that public bodies have a default obligation to provide information, subject to the usual provisos on privacy and security. It was, he thought, only a matter of time before it did though.
But even if the ECHR isn’t yet definitive on the issue and the UK courts take their own line, it isn’t a reason to block efforts to mainstream access to information rights in EU free expression policy.
A number of free expression rights groups have expressed dismay. Most were initially consulted on the paper before the EU took drafting behind closed doors. They say the guidelines as they stand not only fail to recognise the right to access to official information, but also that this right is a key element of freedom of expression rights – seriously undermining the guidelines’ effectiveness.
They are calling on the EU to reconsider the guidelines and address these concerns. “We do not believe the (Guidelines on Freedom of Expression Online & Offline) are complete without a clear reference to the right to information and a commitment to priority action in this area,” said the groups in a letter signed May 21, 2014 by nine groups, including Index on Censorship.
The only reason why we know the EU has cut support for reducing official secrecy is thanks to Wikileaks. That irony alone suggests that there should be a few more gates in the wall surrounding the EU’s secret garden of information.
Citizens who wanted more information from their government, the courts and the scores of quangos that influence our lives, would have benefited had the EU guidelines been allowed to recognise the principle that the right to information should be the default start point, limited only when prescribed by law and “necessary and proportionate” to a legitimate aim. The EU needs to put things right.
This article was published on May 21, 2014 at indexoncensorship.org
21 May 2014 | Campaigns, European Union
On 12 May 2014, the Council of the European Union adopted the EU Human Rights Guidelines on Freedom of Expression: Online and Offline (Guidelines). The initiative to adopt the Guidelines, which provide “political and operational guidance” to EU staff regarding this important area of EU foreign policy and assistance, is welcome.
At the same time, there are certain problems from the perspective of freedom of expression in the Guidelines. It is, in particular, very problematical that the Guidelines fail to recognise the right of the public to access information held by public authorities as an element of the right to freedom expression and as an operational priority for the EU.
This omission seriously undermines the effectiveness of the Guidelines. The right to access information held by public bodies, or the right to information, has been recognised unequivocally at the international and European level, including by the United Nations Human Rights Committee and the European Court of Human Rights, as well as by regional human rights bodies including the African Union and the Organisation of American States. It is not clear why such an important aspect of the right to freedom of expression – an area in which the EU has been active – should have been entirely left out of the Guidelines.
Paragraph 14 of the Guidelines recognise that, in certain circumstances, human rights outcomes may “be assisted” by the disclosure of information held by the State and that this “can serve to promote justice and reparation”, but they fall short of recognising a right to information. The Guidelines also largely fail to recognise promotion of the right to information as a priority area for action, although paragraph 32 does call for support for the adoption of freedom of information laws.
A further concern is that a document of this importance should have been the subject of an open and meaningful process of consultation before it was finalised. Instead, only limited and essentially internal consultations took place. While internal consultations are an appropriate part of the process, the Guidelines should have been the subject of an open public consultation before being adopted in a final version. At a minimum, this would require a formal draft version of the Guidelines to be posted online, with an opportunity for stakeholders to provide comments.
We do not believe the Guidelines are complete without a clear reference to the right to information and a strong commitment to priority action in this area. We therefore call on the relevant EU actors to reconsider the Guidelines with a view to addressing these concerns. Alternatively, we call on the EU to adopt a dedicated set of guidelines on the promotion of the right to information as an element of freedom of expression.
Signatories:
ARTICLE 19
Centre for Law and Democracy
European Federation of Journalists
Free Press Unlimited
Global Forum for Media Development
Index on Censorship
International Media Support
Internews – Europe
Vivarta
For further information please contact:
Caroline Giraud
GFMD Coordinator
Global Form for Media Development
Email: [email protected]
Mob: +32 477 18 56 01
Office: + 32 2 720 26 00
www.gfmd.info
Twitter: @mediagfmd
Skype ID: coordinator.gfmd
Toby Mendel
Executive Director
Centre for Law and Democracy
[email protected]
+1 902 997-1296
+1 902 431-3688
www.law-democracy.org
Twitter: @law_democracy
Skype ID: toby-mendel
21 May 2014 | Counterpoint, Digital Freedom, European Union, News and features
Enshrining the right to be forgotten is a further step towards allowing individuals to take control of their own data, or even monetise it themselves, as we proposed in the Project 2020 white paper (Scenarios for the Future of Cybercrime). The way the law stands in the EU currently, we have legal definitions for a data controller, a data processor and a data subject, an oddity, which lands each of us in the bizarre situation where we are subjects of our own data rather being able to assert any notion of ownership over it. With data ownership comes the right to grant or deny access to that data and to be responsible for its accuracy and integrity.
In response to the ECJ judgement, I have seen a lot of commentators cry “censorship” and make all kinds of unsupportable comparisons with book burning (or pulping), these reactions are misguided and out of all proportion to the decision made. Let’s remember what has been decreed is that an individual has the right to request that certain information be de-indexed from search and aggregation engines. That request is not an order and each one must go through due process and consideration before any changes are made, including if necessary consideration by a court of law. Individuals are not being granted the right to rewrite history, they are being given the right to request, within the strictures of the law, that certain publishers cease to publish information about them which they consider deleterious. They are being given the right to be able to manage their own image online, it seems bizarre that this right is seen by some as the repression of free speech when in effect it gives the individual the right to speak up about something which they find personally damaging.
In 2009, an organisation called “The Consulting Association” was found to be operating a commercial blacklist service to the construction industry. This organisation held detailed files on construction professionals, listing their names, family relationships, newspaper cuttings and details of criminal records. Several global construction companies paid for access to this data and over 3000 individuals were potentially prevented from gaining employment in their industry. Of course this shocks us, and rightly the Information Commissioner took action, seizing the data in question and informing those affected. In many ways a search engine’s constant aggregation of data and even more its contextualisation and publication of that data as relevant to a given name fulfils the same function, now you have a right to at least influence it, even if you cannot stop it.
The ruling is the right one. The court recognises that information that was “legally published” remains so and that the individual has no right to censor it. However, they also recognise that search engines collect, retrieve, record, organise, store and disclose information on an on-going basis and that this constitutes “processing” of data under the EU directive. Further, given that the search engine determines the means and purpose of their own data processing, they are also a “Data Controller” under that directive and again must fulfil the legal requirements of such an entity; any other court decision would weaken that whole directive beyond repair. The entirety of information turned up in response to a search on a person’s name, represents a whole new level of publishing and the discrete items of information would have been very difficult, if not impossible, to put together in the absence of a search engine.
While there will of course be technical and procedural issues that arise from this ruling and there will doubtless be individuals seeking to evade public scrutiny, any other decision on this would have simply blown away the EU Data Protection directive and that is not something any us should be advocating. Consider the wider ramifications of this decision, if a search engine is now a “Data Controller” in the eyes of the law, shouldn’t they be notifying us whenever they collect information about us? Would it be a breath of fresh air if you could begin to understand the wealth of information out there about you and begin to realise an income from it yourself? Personal information is a commodity that commands a financial premium and right now it is others who realise those gains. It’s time we advocated for real ownership of our own data.
Before personal data became a commodity mined by corporations and attackers alike, the need for a legal stance on the identity of the “owner” of data relating to oneself may have seemed laughable. However that has landed us in the situation of today when entities that mine and monetise that same data can refer to this very welcome EU ruling as “disappointing”. Commercially disappointing it may be, however it is a step, albeit a small one, in the right direction.
This article was originally posted on May 13, 2014 at countermeasures.trendmicro.eu
21 May 2014 | Digital Freedom, India, News and features, Politics and Society
(Photo illustration: Shutterstock)
Indians, ever a chatty lot, are obsessed with the idea of being obsessed with social media. That is why, as the BJP’s stunning victory in the Indian general elections was declared, the news media immediately began to examine the impact of social media campaigning in the elections. Numbers aside, the victory over social media has revealed the fault lines of Indian society as it stands today.
India’s online population is small as compared to its offline population – about 213 million users to 1.2 billion people – but it is growing. Though these figures expand and contract depending on whom you ask, we do know that 33 million are on Twitter and Facebook has hit the 100 million-user mark. Given these statistics, it is indeed impressive that India’s newest Prime Minister, Narendra Modi has 4.2 million followers on Twitter already. The would-be leader of opposition, Rahul Gandhi, whose party did not win enough seats to actually assume the seat as leader of the opposition in parliament, isn’t on Twitter. However, his party has an account, with about 181,000 followers. There are other political stars on social media, including individual members of various parties, and notably, members of the newly formed Aam Aadmi Party.
However, when asked the question: “who won the social media war” – because, to be sure, there was one – the answer can only really be Narendra Modi. In fact, his own campaign machinery was so well oiled that his personal profile overshadowed his party. “Ab ki baar, Modi Sarkar” (this time, a Modi government) was arguably the catchiest slogan on the campaign and it inspired many a joke, including a takeover of the nursery rhyme – “twinkle, twinkle, little star, ab ki baar, Modi sarkar!” And according to reports, the BJP was mentioned on Twitter, on average, about 30,000 times a day, with the Congress trailing behind at between 15,000-20,000. Modi’s victory tweet promising a better India after election results were declared was retweeted 69,872 times.
Truthfully, there is no way that social media could have supplanted the traditional route. Modi’s tireless campaigning – 437 rallies, 5,827 public interface events across 25 states that is a distance of 300,000km – is impressive. But, equally impressive was the BJP’s entire digital campaign effort; a “social media war room” that reportedly cost Rs 35 lakh (35,000 GBP), with 30 computers and about 50 volunteers, tracking activities across India’s 92,000 villages. And accounts from insiders, young professionals, many whom took sabbaticals from their jobs to participate in this campaign, talks of a breathless environment, where Facebook was used to crowdsource ideas for speeches, and ‘Mission 272’ (in terms of how many seats they were aiming to win) became a reality. In fact, many creative contributions from BJP’s supporters – videos, jingles, songs and poems – can be found on the website.
At the same time, social media has been very revealing about the state of the Indian majority. The tonality of political discourse over the internet, which was very polarized between the Hindu rightwingers and secularists saw vicious language, trolling and hate speech dotting the landscape. However, the Hindu right, abused as communal in the time of the Congress government have emerged victorious and unapologetic about their political leanings. In public groups on Google Plus, cyber Hindus declare that a “pro Hindu lobby is not an option, but a sheer necessity.” In fact, the ‘liberal’ discourse that sweeps much of the mainstream English media was taken aback at the sweeping victory that the BJP has earned in this election. There is nervousness that the BJP, supported and guided by the RSS – Rashtriya Swayamsevak Sangh—a right-wing, nationalist group espousing strict discipline, martial training and self sacrifice in defence of the Motherland, often derided for being extremist – will work towards a majoritarian agenda where minorities will find less space to exist. These fears are compounded by the RSS’s beliefs – formalized in annual reports – that seek to impose a strict moral code that frowns upon live-in relations, homosexuality and also keeping an eye on minority communities. The RSS has being heartened by educated Indians joining their cause via social media, thereby signaling that their views might no longer be frowned upon as extreme or communal. They do not want to apologize for representing the view of the Hindu right.
And on cue, Narendra Modi, in a rousing speech formally accepting his role as the leader of the majority party in Parliament, promised his fellow BJP MPs that by the birth anniversary of Pandit Deendayal Upadhyaya in 2016, co-founder of the Bharitiya Jan Sangh that later became the BJP as known today, India shall rise to its promise of being a great nation. Tying down his campaign promises to his deep association with the RSS, the signal is clear. Indeed, Atal Bihari Vajpayee, the former Prime Minister, had affirmed proudly that “the Sangh is my soul”. The Hindu is back in Hindustan (another name for India).
An analysis in India Today magazine has declared the Indian cybersphere ‘saffron’ (the color associated with the Hindu right) writing, “But their agenda is a mix of post-modern and traditional. They oppose dynasty politics, particularly the Nehru-Gandhi clan and its allies such as Shiv Sena. They call minority appeasement ‘pseudo-secularism’ with such fervour that their sentiment could easily be interpreted as Hindu supremacist or anti-Muslim. They are against lower-caste reservation, particularly because it is poorly implemented. They are concerned about internal security. But above all, they are against corruption.” In deconstructing the ways of the Hindu saffron social media user, the article offers certain clues, such as the words “proud”, “patriot” and “Hindu” appearing in their bios, and often uploading images of Hindu gods as their display picture.
The people have spoken. The media is filled with analysis that people have either embraced Modi for his Hindu leanings, or ignored them in order realize the dream of “development” that is has promised to deliver. The number of Muslim MPs in parliament is down to 21 from 30 in the last session, the lowest number since India’s first elections. The Congress and its allies, who built careers on carefully constructed platforms of secularism – in their first term, they had a Muslim President, Sikh Prime Minister and Christian leader of the party – have been set aside in favour of a openly religious and Hindu BJP. Whatever be the reasons for the vote, for the everyday people tweeting and Facebooking, it appears that being pro-Hindu is slowly being disassociated with being communal. For many, this is a relief.
It seems it might finally be hip to be Hindu.
This article was posted on May 21, 2014 at indexoncensorship.org
