[vc_row][vc_column][vc_column_text]Index on Censorship has for the past four decades published the work of censored writers and artists. Now we face the possibility of censorship thanks to a UK government law that means — as a publisher that refuses to sign up to a regulator approved by a state-created body — we could end up paying both sides in a legal dispute even if we ultimately win the case. The law, Section 40 of the Crime and Courts Act 2013, as it stands is a danger to a free press.[/vc_column_text][vc_row_inner content_placement=”top”][vc_column_inner width=”1/4″][vc_icon icon_fontawesome=”fa fa-times-circle” color=”black” background_style=”rounded” align=”right”][/vc_column_inner][vc_column_inner width=”3/4″][vc_column_text]
Section 40 of the Crime and Courts Act is a direct threat to press freedom in the UK and must be scrapped.
[/vc_column_text][/vc_column_inner][/vc_row_inner][vc_column_text]This part of the act, created as a response to the Leveson Inquiry into phone hacking, has been on the statute for three years but was not enacted because — until earlier this year — there was no approved regulator of which publishers could be part. That changed when Impress, a regulator to which so far only small local media publishers have signed up, was approved in October by the Press Recognition Panel (PRP). The PRP was established through an arcane state mechanism called a Royal Charter following the Leveson Inquiry. Having an approved regulator means Section 40 of the Crime and Courts Act could now be brought into force and that we and many other small publishers could face crippling costs in any dispute, threatening investigative journalism or those who challenge the powerful or the wealthy.
Section 40 of the Crime and Courts Act is a direct threat to press freedom in the UK and must be scrapped. The government is currently consulting the public on section 40.
Index has warned consistently of the dangers from the Crime and Courts Act.
1. Under s.40, or the “cost provisions”, in relevant media-related court cases, newspapers which are members of a recognised self-regulator are exempt from paying their opponents’ legal costs, even if they lost a case. The presumption would also mean that newspapers outside a recognised self-regulator must pay their own and their opponents’ legal costs, even if they win a case. The s.40 incentive is based on the fact that recognised self-regulators have to have a low cost arbitration scheme that replaces the need for court action.
2. Please provide the evidence that supports your view (max 250 words)
As a small, independent magazine publisher that is a “relevant publisher” of news-related material as per the definition provided in section 41 of the Crime and Courts Act 2013 and that is not subject to any of the exemptions listed in Schedule 15, Index on Censorship faces the prospect of having to pay the costs for both sides if a claim is brought against us – even in a case we are ultimately successful in winning. This could potentially bankrupt the organisation, effectively silencing a magazine that has for the past 44 years dedicated its existence to the publishing of work by, and information about, censored writers and artists worldwide.
3. To what extent will full commencement incentivise publishers to join a recognised self-regulator? Please use evidence in your answer. (max 250 words)
Index on Censorship will not sign up to a regulator that has to be approved by a state-appointed body. Freedom of the press – including total freedom from any state involvement in regulation of the press – is the bedrock of a free and democratic society. Section 40 stands in direct opposition to this principle. Introducing punitive statutory penalties is not an incentive – it is a threat. Forcing publishers to join a recognised regulator or face the threat of punitive costs makes a mockery of the notion that the self-regulator is in any way voluntary.
We urge everyone to write to their MP and to Secretary of State Karen Bradley requesting its immediate repeal or to respond to the online consultation.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”Press Regulation” category_id=”8996″][/vc_column][/vc_row]
Impress has been recognised as an approved regulator by the Press Regulation Panel under the Royal Charter.
The major concern for Index on Censorship remains Section 40 of the Crime and Courts Act 2013, which sets out that an organisation which does not join a recognised regulator but falls under its remit (through being considered a “relevant publisher”) will potentially become subject to exemplary damages should they end up in court, and could also be forced to pay the costs of their opponents. While that remains on the statute and while there is an approved regulator, there is a significant threat to press freedom in the UK.
Though the current government has said it will not enforce Section 40 who knows what a future government might do.
Index on Censorship has fought for free speech since 1972, and as publishers ourselves, we will not join a regulator that has to be approved by a body created by the state. This means we – and many other small publishers – could face crippling costs in any dispute, threatening investigative journalism or those who challenge the powerful or the wealthy.
Index has called for cheaper mediation in press disputes as we, like Impress funder Max Moseley and Impress chair, Walter Merricks, believe this is better for free speech. Where we disagree is in the need for a regulator to be recognised by a panel appointed via the state – or for law that makes it, in effect, compulsory to join an approved regulator or face punitive costs.
How does one gauge if some online communication, especially a tweet or a Facebook post, is “of a menacing character”? How does one determine, even with an iota of objectivity, if such communication can be “grossly offensive”, or causes “annoyance and inconvenience” to another person? And, to top it all, what does it say about the reasonability, let alone legal validity, of a statutory provision which imposes criminal liability on anyone caught in its tangle? If only the legality was an issue. For, it could still be fought out in the courts. But when this provision becomes the basis for an alarming number of instances of vigilantism, spiralling into riots, then the repugnancy hits one smack in the face.
So is the case with Section 66A of India’s Information Technology Act, which reads:
66A. Punishment for sending offensive messages through communication service, etc.
Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, shall be punishable with imprisonment for a term which may extend to three years and with fine.
As reported, Facebook posts are landing people on the wrong side of the law. Meanwhile, it turns out that the arrestee had the cops set upon him because he had dared criticize the chief minister, so Section 66A becomes a tool for vendetta. To make matters worse, “concerned citizens” have started forming vigilante groups to spot such online posts, and bring the offenders to justice. And as it happens in India, to buttress the allegation of “derogatory” or “grossly offensive”, in almost every case, the provisions dealing with the offences of blasphemy or spreading communal hatred are clubbed with Section 66A. If at all something could be blasphemous to the most elementary tenets of freedom of expression, this could qualify as one.
In the city of Pune, someone posts morphed images of revered historical figures and demagogues, and it sets off a communal conflagration and an orgy of vandalism, leading the police to declare that even those who “Like” Facebook posts which could be deemed “offensive” shall be booked.
Section 66A is modeled on the same lines as that of Section 127(1)(a) of UK’s Communication Act, 2003 because both seek to penalise “grossly offensive” online communication. However, the provision in the UK law was “read down” by the House of Lords in 2006, meaning the Court laid down parameters regarding how it was to be interpreted. In Director of Public Prosecutions v. Collins the Court held that the phrase must be construed according to standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. The Lords added that “there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context.” That such rulings do not obliterate the vice of such provisions is proved by what by now has attained notoriety as the “Twitter joke trial”. A frustrated Paul Chambers tweeted – “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!” and all hell broke loose with the authorities mistaking this venting as one of “menacing character” and booking him under terrorism charges. The House of Lords rescued him from the clutches of the law, but not after we were painfully made aware of the perils of ambiguous legal phraseology.
Even though a constitutional challenge to Section 66A is pending before the Supreme Court, the government, instead of following common sense and unwilling to let go of its power to threaten people into silence, issued a set of guidelines in January 2013, apparently to prevent misuse of the provision. These guidelines mandated that only senior policemen could order arrest under this section. This was nothing but a fig leaf to protect an ostensibly unreasonable law, because no safeguards can protect against blatant arbitrariness when there is statutory sanction for the same.
The spate of violence and persecution which threatens to spiral out of control couldn’t have come as a more dire warning to the Indian government- that Sec 66A must be repealed sans further ado, and more criminalization of free speech.
Thousands of people across Britain have been stopped and searched illegally by police using Section 44 of the Terrorism Act 2000, the Home Office has revealed.
One of the most flagrant of these illegal uses was in London in April 2004, involving 840 people.
Fourteen police forces in the UK including the Metropolitan Police, City Police and Thames Valley misused powers on 40 separate occasions between 2001 and 2008. The Home Office said a number of “administrative errors” led to police chiefs not getting the proper authorisation to carry out searches. The Act allows officers to stop and search people without having any “reasonable suspicion” they are about to or intend to commit an act of terrorism.
The errors involve paperwork. Someone didn’t sign something or fill in the right bit. The errors came to light after the Metropolitan Police had to dig around its archive thanks to a Freedom of Information request.
If you define terrorism as the systematic use of violence and intimidation to achieve a goal, then you can make that definition fit police actions whenever they invoke Section 44. The European Court of Human Rights ruled the blanket use of Section 44 across London was unlawful. The law is too loose and open to abuse.
Home Office admission to the illegality of stops and searches under Section 44 does not mean a government admission to the illegality and inhumanity of that very act. Messing up on an administrative level only means that police forces around the country will tighten up their bookkeeping. It does not mean they will cease stopping and searching members of the public they arbitrarily deem a threat to the status quo.
It doesn’t take guts to question what a police officer is doing to you once he invokes Section 44. It takes knowledge.
So what can you do?
• You do not have to give your name and address or explain why you are where you are. You can’t run off, but you can go limp and stay silent.
• Police can only give you a pat down, remove your outer clothes, search your bags and have you empty your pockets. Women cannot be touched by male police.
• Police cannot take your DNA, nor do you have to agree to be photographed or recorded.
• Take notes about the officers searching you — name, number, police force — and the time and events before the search.
• Remember the wording used by police to explain their search and ask them why they are searching you.
• Always get a receipt. And speak to a good lawyer.
