7 Feb 2014 | Digital Freedom, India, News and features
(Image: Shutterstock)
Lord Chief Justice Campbell, while introducing The Obscene Publications Act 1857, described pornography as “poison more deadly than prussic acid, strychnine or arsenic” and insisted that the law was imperative to protect women, children and the feeble-minded.
The Indian Supreme Court’s observations and directions while hearing a petition in which online pornography is blamed for of the “epidemic” of rape and sexual violence is redolent of the pornophobia which had gripped the puritanical English legal system in the Victorian era. It is also a stark reminder of the befuddling and dangerous consequences of internet filters, as is being seen in the United Kingdom.
On 27 January, one of the defendants, the Internet Service Providers Association India (ISPAI) while stating that they would not indulge in voluntary censorship, posed a more challenging question — since there is no granular distinction to be made between “high art” and pornography, since temple sculptures can simultaneously be interpreted as both divine and obscene, how could they decide what to block and what to allow. On 28 January, all liberty-loving Indians were aghast at the Supreme Court’s intransigence on homosexual sex.
Taken together, these incidents portend to consequences more pernicious than just a chilling effect on free expression. As Lynda Nead contends, drawing a distinction between sublime and profane seeks to serve a social legitimising function which result in moral policing and violations of the rights of many.
Does pornography cause rape? Justice Douglas’ statement in Ginsberg — “Censors, of course, are propelled by their own neuroses” — and Ronald Dworkin’s reply to Katherine MacKinnon’s “breathtaking hyperbole” remain the most plausible answers to date, not a single study has been able to irrefutably prove correlation, let alone causation. However, Indian courts’ treatment of pornography has been ironic because exposure to obscene and sexually explicit material has been treated as a mitigating factor in rape sentencing. Reepik Ravinder and Phul Singh are two examples of rapists being regarded as victims of the “sex explosion” on celluloid. Not only that, a “ministry of psychic health and moral values” has also been directed to be established to nip this epidemic of vulgarity in the bud.
Justice Potter Stewart’s aphorism “I know it when I see it” holds true for any “definition” of pornography — even today. All we have got is a mystifying epithetic tautology — prurient, lewd, filthy, repulsive, which does no service to the clarity of judicial vision. It is easier to treat pornography as an accused, rather than an offence, because tropes and stereotypes make for poor and unjust legal definitions.
The plea to criminalise browser histories suffers from several grave elisions. For one, irrefutable evidence of correlation, let alone causation, between pornography and sexual violence or depravity is conspicuous by its absence. Though Delhi has a high rate of reported rapes, Google Trends data from 2013 shows more people in the apparently conservative bastions of Gujarat and West Bengal were searching for pornography online.
Most significantly, an obscurantist idyll defines the average consumer and purposes of online pornography. Evidence dispels the notion of only rapacious, lustful men devouring pornography. A 2008 survey reported one in five women watching and approving of porn. Forty-five percent of women who watched pornography also made their own porn videos, and stated how it had helped them being sexually inventive and more intimate with their partners. Another survey, deemed to be the most comprehensive, shows 60 percent women and 80 percent men admitting to accessing sexually explicit content online. Significantly, 30 percent of women respondents said that such content deals with sexual and reproductive health and romance, too. More significant is the response that usage of pornography improved couples’ sex lives.
Moreover, the upshots of dragnet internet filters are reasons for grave consternation. Google AdSense mistook an author’s memoir for pornography and blocked it. In reverse irony, smut sites got caught in an attempt to prevent bureaucrats from surfing sites related to the stock market. And since algorithms do not have a mind of their own, Christopher Hitchens’s polemic against Mother Teresa “The Missionary Position” might also lose its immunity.
India’s information technology law remains riddled with fuzzy definitions, and right now Google, stands indicted for defamation. A ban on internet pornography would further queer the pitch for intermediary liability, thereby delivering another blow to free speech.
Given the climate of legal homophobia, a reference to the aftermath of Canada’s ban on pornography becomes pertinent. There was a sustained persecution of bookstores stocking gay and lesbian literature, comics included, and 70 percent of prosecutions were of homosexual pornography. Besides, even if there were only opt-in filters, it would entail identifying one’s sexual preferences. And where demands for arresting homosexuals are raised on the flimsiest of pretexts, one would become a sitting duck for privacy breaches and criminal prosecution.
One can only wish these apprehensions, and not pornophobia, inform the Supreme Court’s decision.
This article was posted on February 7 2014 at indexoncensorship.org
23 Jan 2014 | Campaigns
Index on Censorship and IFEX members call for the release of Alaa Abd El Fattah and all those unjustly detained in Egypt
The military “interim government” in Egypt is cracking down on virtually all meaningful form of assembly, association, or opposition.
Following the passage of a November 2013 law banning peaceful protest, dozens of activists and organizers have been sent to prison. Among them is Alaa Abd El Fattah, software guru, blogger and political activist.
On the night of November 28th, security forces raided Alaa’s home, beat him and his wife when asked to see their warrant, and took and held him overnight, blindfolded and handcuffed, in an unknown location. Currently, he is held at Tora Prison, Egypt’s notorious maximum security detention center, historically used to house men suspected of violent crimes and terrorism.
But Alaa is not being prosecuted for crimes of violence. A critic of repressive state practices and a staunch advocate of free information, free and open source software, and Arabic localization in the Middle East, he was one of the first Egyptian netizens facilitating a movement for political change around a simple idea: freedom of expression.
His wildly popular blog—established with his wife, Manal—helped spark a community of bloggers in the Arab World committed to the promotion of free speech and human rights. It won the Reporters Without Borders award at the 2005 Bobs. Their groundbreaking website, Omraneya, collected blog entries across the Arab World, archiving dissent in the face of repression. As put by one popular independent media outlet: “[Omraneya is] at times the house of alternative expression and at others the amplifier of muted voices.”
Following the uprising of January 25, 2011, Alaa continued to promote free expression through online platforms. He started a nation-wide people’s initiative enabling citizen collaboration in the drafting of the Egyptian Constitution. He initiated and hosted Tweet-Nadwas (“Tweet-Symposiums”), that brought activists and bloggers from across the world into Tahrir Square, to participate in open format dialogue about tough issues ranging from Islamism to Economic Reform.
Without looking down at our feet, let’s look forward and envision the perfect state; I myself don’t want a state but I know that isn’t possible. Instead, I must focus on the steps that might lead me to build the ‘good’ state.” – Alaa Abd El Fattah (Tweet Nadwa, June 14 2011).”
Alaa has been jailed or charged under every government to take power in Egypt. In 2006, when he was only 22, he was jailed by the Mubarak government. The Supreme Council of the Armed Forces (SCAF) jailed him in 2011. Morsi brought a case against him in 2013. And he is now imprisoned by the current military government. He is not alone in this cycle of persecution. Alongside him now in prison are activists Ahmed Maher, Mohamed Adel, and Ahmed Douma—all of whom were also targeted by Egypt’s recent regimes. Thousands of other young people are in prison or unaccounted for.
Alaa’s mother, Laila Soueif, one of the founders of the Kefaya protest movement, which is widely credited as one of the key precursors to the January 2011 uprising, commented:
Alaa is one of the most outspoken and uncompromising critics of state violence and repression of his generation. At this particular juncture, those in power are trying to sell the myth that the whole country is united behind them against the Muslim Brotherhood and their allies. The fact that Alaa, who was very vocal in his criticism of the Brotherhood while Morsi was president, is condemning – even more strongly – the current criminal behaviour of the police and the army explodes their myth. Particularly as he is not alone in taking this position. Arresting him and demonizing him in the media is a message to critics of the regime to shut up.”
The current government has already handed Alaa (together with his sister Mona Seif) a one year suspended sentence in a similar, but separate, trial. Current charges may find Alaa facing additional years. Ahmed Seif, prominent human rights lawyer and father of Alaa Abd El Fattah says:
The Prosecution has done everything in its power to impede Alaa’s appeal against his imprisonment on remand. It has been more than a month since the Prosecution completed its investigations and referred the case to the Criminal Court, but lawyers have still not been allowed access to the case file, and neither a district nor a date have been set for the trial.”
As the third anniversary of the January 25 revolution draws near, we express our concern that Alaa’s case marks a worrying trend for civil liberties in Egypt.
The undersigned demand the immediate release and a fair trial for all those unjustly detained in accordance with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which Egypt is a signatory.
Signed,
Electronic Frontier Foundation
ActiveWatch – Media Monitoring Agency
Afghanistan Journalists Center
Arabic Network for Human Rights Information
ARTICLE 19
Association for Freedom of Thought and Expression
Association of Independent Electronic Media
Bahrain Center for Human Rights
Canadian Journalists for Free Expression
Centre for Independent Journalism – Malaysia
Derechos Digitales
Egyptian Organization for Human Rights
Foundation for Press Freedom – FLIP
Freedom Forum
Freedom House
Globe International Center
Human Rights Watch
Independent Journalism Center – Moldova
Index on Censorship
Initiative for Freedom of Expression – Turkey
Journalists’ Trade Union
Media, Entertainment and Arts Alliance
Media Foundation for West Africa
Media Institute of Southern Africa
Media Rights Agenda
National Union of Somali Journalists
Norwegian PEN
Pacific Islands News Association
Pakistan Press Foundation
PEN American Center
PEN Canada
PEN International
Public Association “Journalists”
World Association of Newspapers and News Publishers
Rasha A. Abdulla, Ph.D., The American University in Cairo
Amir Ahmad Nasr, author of My Isl@m
7iber
Access
Arab Digital Expression Foundation
Association for Progressive Communication
Digital Rights Foundation, Pakistan
Freedom of the Press Foundation
Global Voices Advocacy
International Federation of Journalists Asia-Pacific
Internet Sans Frontières (Internet Without Borders)
Jadaliyya
Mada Masr
Social Media Exchange (SMEX)
The Workshops (Egypt)
15 Jan 2014 | Europe and Central Asia, European Union, Index Reports, News and features, Politics and Society
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
Beyond its near neighbourhood, the EU works to promote freedom of expression in the wider world. To promote freedom of expression and other human rights, the EU has 30 ongoing human rights dialogues with supranational bodies, but also large economic powers such as China.
The EU and freedom of expression in China
The focus of the EU’s relationship with China has been primarily on economic development and trade cooperation. Within China some commentators believe that the tough public noises made by the institutions of the EU to the Chinese government raising concerns over human rights violations are a cynical ploy so that EU nations can continue to put financial interests first as they invest and develop trade with the country. It is certainly the case that the member states place different levels of importance on human rights in their bilateral relationships with China than they do in their relations with Italy, Portugal, Romania and Latvia. With China, member states are often slow to push the importance of human rights in their dialogue with the country. The institutions of the European Union, on the other hand, have formalised a human rights dialogue with China, albeit with little in the way of tangible results.
The EU has a Strategic Partnership with China. This partnership includes a political dialogue on human rights and freedom of the media on a reciprocal basis.[1] It is difficult to see how effective this dialogue is and whether in its present form it should continue. The EU-China human rights dialogue, now 14 years old, has delivered no tangible results.The EU-China Country Strategic Paper (CSP) 2007-2013 on the European Commission’s strategy, budget and priorities for spending aid in China only refers broadly to “human rights”. Neither human rights nor access to freedom of expression are EU priorities in the latest Multiannual Indicative Programme and no money is allocated to programmes to promote freedom of expression in China. The CSP also contains concerning statements such as the following:
“Despite these restrictions [to human rights], most people in China now enjoy greater freedom than at any other time in the past century, and their opportunities in society have increased in many ways.”[2]
Even though the dialogues have not been effective, the institutions of the EU have become more vocal on human rights violations in China in recent years. For instance, it included human rights defenders, including Ai Weiwei, at the EU Nobel Prize event in Beijing. The Chinese foreign ministry responded by throwing an early New Year’s banquet the same evening to reduce the number of attendees to the EU event. When Ai Weiwei was arrested in 2011, the High Representative for Foreign Affairs Catherine Ashton issued a statement in which she expressed her concerns at the deterioration of the human rights situation in China and called for the unconditional release of all political prisoners detained for exercising their right to freedom of expression.[3] The European Parliament has also recently been vocal in supporting human rights in China. In December 2012, it adopted a resolution in which MEPs denounced the repression of “the exercise of the rights to freedom of expression, association and assembly, press freedom and the right to join a trade union” in China. They criticised new laws that facilitate “the control and censorship of the internet by Chinese authorities”, concluding that “there is therefore no longer any real limit on censorship or persecution”. Broadly, within human rights groups there are concerns that the situation regarding human rights in China is less on the agenda at international bodies such as the Human Rights Council[4] than it should be for a country with nearly 20% of the world’s population, feeding a perception that China seems “untouchable”. In a report on China and the International Human Rights System, Chatham House quotes a senior European diplomat in Geneva, who argues “no one would dare” table a resolution on China at the HRC with another diplomat, adding the Chinese government has “managed to dissuade states from action – now people don’t even raise it”. A small number of diplomats have expressed the view that more should be done to increase the focus on China in the Council, especially given the perceived ineffectiveness of the bilateral human rights dialogues. While EU member states have shied away from direct condemnation of China, they have raised freedom of expression abuses during HRC General Debates.
The Common Foreign and Security Policy and human rights dialogues
The EU’s Common Foreign and Security Policy (CFSP) is the agreed foreign policy of the European Union. The Maastricht Treaty of 1993 allowed the EU to develop this policy, which is mandated through Article 21 of the Treaty of the European Union to protect the security of the EU, promote peace, international security and co-operation and to consolidate democracy, the rule of law and respect for human rights and fundamental freedom. Unlike most EU policies, the CFSP is subject to unanimous consensus, with majority voting only applying to the implementation of policies already agreed by all member states. As member states still value their own independent foreign policies, the CFSP remains relatively weak, and so a policy that effectively and unanimously protects and promotes rights is at best still a work in progress. The policies that are agreed as part of the Common Foreign and Security Policy therefore be useful in protecting and defending human rights if implemented with support. There are two key parts of the CFSP strategy to promote freedom of expression, the External Action Service guidelines on freedom of expression and the human rights dialogues. The latter has been of variable effectiveness, and so civil society has higher hopes for the effectiveness of the former.
The External Action Service freedom of expression guidelines
As part of its 2012 Action Plan on Human Rights and Democracy, the EU is working on new guidelines for online and offline freedom of expression, due by the end of 2013. These guidelines could provide the basis for more active external policies and perhaps encourage a more strategic approach to the promotion of human rights in light of the criticism made of the human rights dialogues.
The guidelines will be of particular use when the EU makes human rights impact assessments of third countries and in determining conditionality on trade and aid with non-EU states. A draft of the guidelines has been published, but as these guidelines will be a Common Foreign and Security Policy document, there will be no full and open consultation for civil society to comment on the draft. This is unfortunate and somewhat ironic given the guidelines’ focus on free expression. The Council should open this process to wider debate and discussion.
The draft guidelines place too much emphasis on the rights of the media and not enough emphasis on the role of ordinary citizens and their ability to exercise the right to free speech. It is important the guidelines deal with a number of pressing international threats to freedom of expression, including state surveillance, the impact of criminal defamation, restrictions on the registration of associations and public protest and impunity against human right defenders. Although externally facing, the freedom of expression guidelines may also be useful in indirectly establishing benchmarks for internal EU policies. It would clearly undermine the impact of the guidelines on third parties if the domestic policies of EU member states contradict the EU’s external guidelines.
Human rights dialogues
Another one of the key processes for the EU to raise concerns over states’ infringement of the right to freedom of expression as part of the CFSP are the human rights dialogues. The guidelines on the dialogues make explicit reference to the promotion of freedom of expression. The EU runs 30 human rights dialogues across the globe, with the key dialogues taking place in China (as above), Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan, Georgia and Belarus. It also has a dialogues with the African Union, all enlargement candidate countries (Croatia, the former Yugoslav republic of Macedonia and Turkey), as well as consultations with Canada, Japan, New Zealand, the United States and Russia. The dialogue with Iran was suspended in 2006. Beyond this, there are also “local dialogues” at a lower level, with the Heads of EU missions, with Cambodia, Bangladesh, Egypt, India, Israel, Jordan, Laos, Lebanon, Morocco, Pakistan, the Palestinian Authority, Sri Lanka, Tunisia and Vietnam. In November 2008, the Council decided to initiate and enhance the EU human rights dialogues with a number of Latin American countries.
It is argued that because too many of the dialogues are held behind closed doors, with little civil society participation with only low-level EU officials, it has allowed the dialogues to lose their importance as a tool. Others contend that the dialogues allow the leaders of EU member states and Commissioners to silo human rights solely into the dialogues, giving them the opportunity to engage with authoritarian regimes on trade without raising specific human rights objections.
While in China and Central Asia the EU’s human rights dialogues have had little impact, elsewhere the dialogues are more welcome. The EU and Brazil established a Strategic Partnership in 2007. Within this framework, a Joint Action Plan (JAP) covering the period 2012-2014 was endorsed by the EU and Brazil, in which they both committed to “promoting human rights and democracy and upholding international justice”. To this end, Brazil and the EU hold regular human rights consultations that assess the main challenges concerning respect for human rights, democratic principles and the rule of law; advance human rights and democracy policy priorities and identify and coordinate policy positions on relevant issues in international fora. While at present, freedom of expression has not been prioritised as a key human rights challenge in this dialogue, the dialogues are seen by both partners as of mutual benefit. It is notable that in the EU-Brazil dialogue both partners come to the dialogues with different human rights concerns, but as democracies. With criticism of the effectiveness and openness of the dialogues, the EU should look again at how the dialogues fit into the overall strategy of the Union and its member states in the promotion of human rights with third countries and assess whether the dialogues can be improved.
[1] It covers both press freedom for the Chinese media in Europe and also press freedom for European media in China.
[2] China Strategy Paper 2007-2013, Annexes, ‘the political situation’, p. 11
[3] “I urge China to release all of those who have been detained for exercising their universally recognised right to freedom of expression.”
[4] Interview with European diplomat, February 2013.
3 Dec 2013 | Canada, Politics and Society
(Photo illustration: Shutterstock)
Journalists in the Canadian province of Alberta could see their right to free speech stifled as new legislation, aimed at suppressing the illegal striking of union members, will impose heavy fines on those who comment publically in favour of those picketing.
For members of the Alberta Union of Provincial Employees (AUPE) it has been illegal to strike since 1977. The new legislation, introduced by Alison Redford’s Progressive Conservative government, will abolish the action of arbitration, as well as freezing wages and imposing fines, both for those who take part any form of “illegal” striking and those who comment on it.
According to Bob Barnetson, the director of the Human Resources and Labour Relations programme at Athabasca University, Bill 45 would see newspaper columnists who write opinion pieces about the plight of workers, or those who merely comment “the only option they have is to strike” handed a hefty penalty for their work. Making such comment would be a violation of section 4.4 of the bill.
“So what happens to the editor or academic?” Barnetson wrote on his blog last week. “Well, s.18.1 says that if you violate s.4.4 you are guilty of an offence. Under s.18.1(d), the editor or academic would be liable for a fine of $500 a day per day of the contravention. Section 20(a) says that prosecution may occur within 1 year of the last day the offense occurred”.
David Climenhaga, a well-known labour blogger in Alberta, believes the imposed fines would stretch as far as catching-out members of the public who showed up at an “illegal” picket line or members of other unions, not subjected to the legislation, who joined a picket out of solidarity: “So, while the bill is mostly careful to restrict penalties to union members and officers, on the always dangerous question of free speech, it extends its attack to “any person” who says the wrong thing to a civil servant.”
Bill 46, which will run alongside Bill 45, will see the 21,642 members of the AUPE forced back to the bargaining table in January or accept a 0% wage increase for the next two years.
An earlier version of this article referred to Alberta as a state. It is a province.
