23 Jan 2014 | News, Religion and Culture, United Kingdom
A Bible-based play by acclaimed comedy group The Reduced Shakespeare company has been pulled from the stage after protests from Christian fundamentalists.
According to UTV, the company was due to perform The Bible: The Complete Word of God (abridged), at the Theatre At the Mill in Newtownabbey in Northern Ireland next week at the beginning of a UK tour. The RSC is famous for its fast-paced irreverent shows based on great texts. The group describes the Bible adaptation as “an affectionate, irreverent roller coaster ride from fig leaves to final judgement.”
But local politician Billy Ball, of Reverend Ian Paisley’s ruling Democratic Unionist Party, had called for the irreverent show to be banned. Ball is reported as saying:
For Christians, the Bible is the infallible word of God and it’s not something to be made fun of. These people are treating something sacred with irreverence and disrespect”
Mr Ball recently told the Belfast Telegraph:
“My wife, councillor Audrey Ball, has recently been put on the artistic board, so I know in future she will speak up for Christianity.
“Those against her strong beliefs better watch out.”
Today, the theatre announced via Twitter that the performances, scheduled for next weekend had been cancelled.
The theatre could not be contacted at time of publication. Alderman Ball confirmed to Index that the theatre had been in contact with him about the play, but declined to comment any further on the issue, saying he would make a statement at a council meeting on Monday after it had been cleared with his party.
UPDATE (16:oo). Newtownabbey Borough Council has issued a statement confirming the decision to cancel the performances:
At the Council’s Policy and Governance Committee on Monday 20 January concerns were raised by Elected Members who had received complaints from the general public about the content and nature of the show.
Yesterday the Council’s Artistic Board held a planned Away Day, to plan and develop a strategy for the Council’s future Arts Programme. During the day, next week’s performance of ‘The Bible: The Complete Word of God (abridged) at the Theatre at the Mill was discussed by the Board.
Subsequently, the Chair of the Council’s Artistic Board, Councillor Billy Webb, has written to the Council’s Chief Executive, to confirm that, with great regret the Board has taken the decision to cancel next week’s production.
In taking this decision, the Board wishes to confirm its commitment to deliver on the agreed Council’s Artistic Policy “to deliver the highest quality performing arts programme, offering a diverse, socially relevant and enriching experience to as many citizens as possible”.
800 seats were available over the two nights and 150 tickets were sold , a 19% take up on tickets.
The approximate net costs of cancelling the show are £2000. Box Office staff are contacting ticket holders to advise them of the show’s cancellation and to apologise for any inconvenience caused.
This article was published on 23 January 2014 at indexoncensorship.org
14 Jan 2014 | About Index, Campaigns, Press Releases, Statements
Dean Spielmann
President
European Court of Human Rights
Council of Europe
F-67075 Strasbourg cedex
France
13 January 2014
Re: Grand Chamber referral in Delfi v. Estonia (Application no. 64569/09)
Index’s coverage: European ruling spells trouble for online comment
Dear President Spielmann and members of the panel:
We, the undersigned 69 media organisations, internet companies, human rights groups and academic institutions write to support the referral request that we understand has been submitted in the case of Delfi v. Estonia (Application No. 64569/09). Signatories to this letter include some of the largest global news organisations and internet companies including Google, Forbes, News Corp, Thomson Reuters, the New York Times, Bloomberg News, Guardian News and Media, the World Association of Newspapers and News Publishers and Conde Nast; prominent European media companies and associations including the European Newspaper Publishers’ Association, Sanoma Media Netherlands B.V. and the European Publishers Council; national media outlets and journalists associations from across the continent; and advocacy groups including Index on Censorship, Greenpeace, the Center for Democracy and Technology and ARTICLE 19.
We understand that the applicant in the above-referenced case has requested that the chamber judgment of 10 October 2013 be referred to the Grand Chamber of the Court for reconsideration. We are writing to endorse Delfi’s request for a referral due to our shared concern that the chamber judgment, if it stands, would have serious adverse repercussions for freedom of expression and democratic openness in the digital era. In terms of Article 43 (2) of the Convention, we believe that liability for user-generated content on the Internet constitutes both a serious question affecting the interpretation or application of Article 10 of the Convention in the online environment and a serious issue of general importance.
The case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.
We find the chamber’s arguments and conclusions deeply problematic for the following reasons.
First, the chamber judgment failed to clarify and address the nature of the duty imposed on websites carrying user-generated content: what are they to do to avoid civil and potentially criminal liability in such cases? The inevitable implication of the chamber ruling is that it is consistent with Article 10 to impose some form of strict liability on online publications for all third-party content they may carry. This would translate, in effect, into a duty to prevent the posting, for any period of time, of any user-generated content that may be defamatory.
Such a duty would place a very significant burden on most online news and comment operations – from major commercial outlets to small local newspapers, NGO websites and individual bloggers – and would be bound to produce significant censoring, or even complete elimination, of user comments to steer clear of legal trouble. The Delfi chamber appears not to have properly considered the implications for user comments, which on balance tend to enrich and democratize online debates, as part of the ‘public sphere’.
Such an approach is at odds with this Court’s recent jurisprudence, which has recognized that “[i]n light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally.”[1] Likewise, in Ahmet Yildirim v. Turkey, the Second Section of the Court emphasised that “the Internet has now become one of the principal means of exercising the right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest”.[2]
Secondly, the chamber ruling is inconsistent with Council of Europe standards as well as the letter and spirit of European Union law. In a widely cited 2003 Declaration, the Committee of Ministers of the Council of Europe urged member states to adopt the following policy:
“In cases where … service providers … store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware … of their illegal nature.
When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information.”[3]
The same position was essentially adopted by the European Union through the Electronic Commerce Directive of 2000. Under the Directive, member states cannot impose on intermediaries a general duty to monitor the legality of third-party communications; they can only be held liable if they fail to act “expeditiously” upon obtaining “actual knowledge” of any illegality. This approach is considered a crucial guarantee for freedom of expression since it tends to promote self-regulation, minimizes the need for private censorship, and prevents overbroad monitoring and filtering of user content that tends to have a chilling effect on online public debate.
Thirdly, it follows from the above that the Delfi chamber did not thoroughly assess whether the decisions of the Estonian authorities were “prescribed by law” within the meaning of Article 10 § 2. Under the E-Commerce Directive and relevant judgments of the Court of Justice of the European Union (CJEU), it was not unreasonable for Delfi to believe that it would be protected by the “safe harbour” provisions of EU law in circumstances such as those of the current case.[4] The chamber ruling sets the Court on a potential course of collision with the case law of the CJEU and may also give rise to a conflict under Article 53 of the Convention.
Finally, the chamber ruling is also at odds with emerging practice in the member states, which are seeking innovative solutions to the unique complexities of the Internet. In the UK, for example, the new defamation reforms for England and Wales contain a number of regulations applicable specifically to defamation through the Internet, including with respect to anonymous third-party comments. Simply applying traditional rules of editorial responsibility is not the answer to the new challenges of the digital era. For similar reasons, related among others to the application of binding EU law, a recent Northern Ireland High Court judgment expressly chose not to follow the Delfi chamber ruling.[5]
For all these reasons, we strongly urge the Court to accept the applicant’s request for a referral that would allow the Grand Chamber to reconsider these issues, taking into account the points raised by the signatories in this letter. There is no question in our minds that the current case raises “a serious question affecting the interpretation” of Article 10 of the Convention as well as “a serious issue of general importance” (Art. 43).
Sincerely,
Algemene Vereniging van Beroepsjournalisten in België
American Society of News Editors
ARTICLE 19
Association of American Publishers, Inc
Association of European Journalists
Bloomberg
bvba Les Journaux Francophones Belges
Center for Democracy and Technology
Conde Nast International Ltd.
Daily Beast Company, LLC
Digital First Media, LLC
Digital Media Law Project, Berkman Center for Internet & Society – Harvard University
Digital Rights Ireland
Dow Jones
Electronic Frontier Finland
Estonian Newspapers Assocation (Eesti Ajalehtede Liit)
EURALO (ICANN’s European At-Large Organization)
European Digital Rights (EDRi)
European Information Society Institute (EISi)
European Magazine Media Association
European Media Platform
European Newspaper Publishers’ Association (ENPA)
European Publishers Council
Federatie van periodieke pers, the Ppress
Forbes
Global Voices Advocacy
Google, Inc.
Greenpeace
Guardian News & Media Limited
Human Rights Center, Ghent University
Hungarian Civil Liberties Union
iMinds-KU Leuven, Interdisciplinary Centre for Law and ICT
Index on Censorship
International Press Institute
Internet Democracy Project
La Quadrature du Net
Lithuanian Online Media Association
Mass Media Defence Center
Media Foundation Leipzig
Media Law Resource Center
Media Legal Defence Initiative
National Press Photographers Association
National Public Radio
Nederlands Genootschap van Hoofdredacteuren
Nederlands Uitgeversverbond (NUV)
Nederlandse Vereniging van Journalisten
Net Users’ Rights Protection Association
News Corp.
Newspaper Association of America
North Jersey Media Group, Inc
NRC Handelsblad
Online News Association
Open Media Coalition – Italy
Open Rights Group
Panoptykon
PEN International
PEN-Vlaanderen
Persvrijheidsfonds
Raad voor de Journalistiek
Radio Television Digital News Association
Raycom Media, Inc.
Reporters Committee for Freedom of the Press
Sanoma Media Netherlands B.V.
Telegraaf Media Groep NV
The New York Times Company
Thomson Reuters
Vlaamse Nieuwsmedia
Vlaamse Vereniging van Journalisten
Vrijschrift
World Association of Newspapers and News Publishers
[1] Times Newspapers Ltd v. the United Kingdom (Nos. 1 and 2), Judgment of 10 March 2009, para. 27. See also Editorial Board of Pravoye Delo and Shtekel v. Ukraine, Judgment of 5 May 2011.
[2] Judgment of 18 December 2012, para. 54.
[3] Declaration on freedom of communication on the Internet, 28 May 2003, adopted at the 840th meeting of the Ministers’ Deputies.
[4] The CJEU has ruled, with reference inter alia to Article 10 ECHR, that an Internet service provider cannot be required to install a system filtering (scanning) all electronic communication passing through its services as this would amount to a preventive measure and a disproportionate interference with its users’ freedom of expression and information. See Scarlet v. Sabam, Case C-70/10, Judgment of 24 November 2011; and Netlog v. Sabam, Case C-360/10, Judgment of 16 February 2012.
[5] J19 & Anor v Facebook Ireland [2013] NIQB 113 (15 November 2013), at http://www.bailii.org/nie/cases/NIHC/QB/2013/113.html.
10 Jan 2014 | Digital Freedom, Europe and Central Asia, European Union, News
(Illustration: Shutterstock)
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
The EU has made a number of positive contributions to digital freedom: it plays a positive part in the global debate on internet governance; the EU’s No-Disconnect Strategy, its freedom of expression guidelines and its export controls on surveillance equipment have all be useful contributions to the digital freedom debate, offering practical measures to better protect freedom of expression. Comparatively, some of the EU’s member states are amongst the world’s best for protecting online freedom. The World Wide Web Foundation places Sweden at the top of its 2012 Index of internet growth, utility and impact, with the UK, Finland, Norway and Ireland also in the top 10. Freedom House ranks all EU member states as “free”, and an EU member state, Estonia, ranks number one globally in the organisation’s annual survey, “Freedom in the World”. But these indices merely represent a snapshot of the situation and even those states ranked as free fail to fully uphold their freedom of expression obligations, online as well as offline.
As the recent revelations by whistleblower Edward Snowden have exposed, although EU member states may in public be committed to a free and open internet, in secret, national governments have been involved in a significant amount of surveillance that breaches international human rights norms, as well as these governments’ own legal commitments. It is also the case that across the EU, other issues continue to chill freedom of expression, including the removal or takedown of legitimate content.
The EU’s position on digital freedom is analysed in more detail in Index on Censorship’s policy paper “Is the EU heading in the right direction on digital freedom?” The paper points out that the EU still lacks a coherent overarching strategy and set of principles for promoting and defending freedom of expression in the digital sphere.
Surveillance
Recent revelations by former US National Security Agency (NSA) whistleblower Edward Snowden into the NSA’s PRISM programme have also exposed that mass state surveillance by EU governments is practised within the EU, including in the UK and France.
Mass or blanket surveillance contravenes Article 8 (the right to respect for private and family life) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights. In its jurisprudence, the European Court of Human Rights has repeatedly stated that surveillance, if conducted without adequate judicial oversight and with no effective safeguards against abuse, will never be compatible with the European Convention.[1]
This state surveillance also breaches pledges EU member states have made as part of the EU’s new cybersecurity strategy, which was agreed in February 2013 and addresses mass state surveillance. The Commission stated that cybersecurity is predominantly the responsibility of member states, an approach some have argued gives member states the green light for increased government surveillance. Because the strategy explicitly states that “increased global connectivity should not be accompanied by censorship or mass surveillance”, member states were called upon to address their adherence to this principle at the European Council meeting on 24th October 2013. The Council was asked to address revelations that external government surveillance efforts, such as the US National Security Agency’s Prism programme, undermining EU citizens’ rights to privacy and free expression. While the Council did discuss surveillance, as yet there has been no common EU position on these issues.
At the same time, the EU has also played a role in laying the foundations for increased surveillance of EU citizens. In 2002, the EU e-Privacy Directive introduced the possibility for member states to pass laws mandating the retention of communications data for security purposes. In 2006, the EU amended the e-Privacy Directive by enacting the Data Retention Directive (Directive 2006/24/EC), which obliges member states to require communications providers to retain communications data for a period of between six months and two years, which could result in member states collecting a pool of data without specifying the reasons for such practice. A number of individual member states, including Germany, Romania and the Czech Republic, have consulted the European Convention on Human Rights and their constitutions and have found that the mass retention of individual data through the Data Retention Directive to be illegal.
While some EU member states are accused of colluding in mass population surveillance, others have some of the strongest protections anywhere globally to protect their citizens against surveillance. Two EU member states, Luxembourg and the Czech Republic, require that individuals who are placed under secret surveillance to be notified. Other EU member states have expanded their use of state surveillance, in particular Austria, the UK and Bulgaria. Citizens of Poland are subject to more phone tapping and surveillance than any other citizens in the European Union; the European Commission has claimed the police and secret services accessed as many as 1,300,000 phone bills in 2010 without any oversight either by the courts or the public prosecutor.
Internet governance
At a global level the EU has argued for no top-down state control of internet governance. There are efforts by a number of states including Russia, China and Iran to increase state control of the internet through the International Telecommunication Union (ITU). The debate on global internet governance came to a head at the Dubai World Conference on International Telecommunications (WCIT) summit at the end of 2012 which brought together 193 member states. At the WCIT, a number of influential emerging democratic powers aligned with a top-down approach with increased state intervention in the governance of the internet. On the other side, EU member states, India and the US argued the internet should remain governed by an open and collaborative multistakeholder approach. The EU’s influence could be seen through the common position adopted by the member states. The European Commission as a non-voting WCIT observer produced a common position for member states that opposed any new treaty on internet governance under the UN’s auspices. The position ruled out any attempts to make the ITU recommendations binding and would only back technology neutral proposals – but made no mention of free expression. The absence of this right is of concern as other rights including privacy (which was mentioned) do not always align with free speech. After negotiations behind closed doors, all 27 EU member states and another 28 countries including the US abstained from signing the final treaty. That states with significant populations and rising influence in their regions did not back the EU and leant towards more top-down control of the internet should be of significant concern for the EU.
Intermediate liability, takedown and filtering
European laws on intermediate liability, takedown and filtering are overly vague in defining what constitutes valid and legitimate takedown requests, which can lead to legal uncertainty for both web operators and users. Removal of content without a court order can be problematic as it places the content host in the position of judge and jury over content and inevitably leads to censorship of free expression by private actors. EU directorate DG MARKT[2] is currently looking into the results of a public consultation into how takedown requests affect freedom of expression, among other issues. It is expected that the directorate will outline a directive or communication on the criteria takedown requests must meet and the evidence threshold required, while also clarifying how “expeditiously” intermediaries must act to avoid liability. A policy that clarifies companies’ legal responsibilities when presented with takedown requests should help better protect online content from takedown where there is no legal basis for the complaint.
The EU must take steps to protect web operators from vexatious claims from individuals over content that is not illegal. Across the EU, the governments of member states are increasingly using takedown requests. Google has seen a doubling of requests from the governments of Germany, Hungary, Poland and Portugal from 2010-2012; a 45% increase from Belgium and double-digit growth in the Netherlands, Spain and the UK. Governments are taking content down for dubious reasons that may infringe Article 10 rights of the ECHR. In 2010, a number of takedown requests were made in response to ‘”government criticism” and four in response to “religious offence”. A significant 8% of takedown requests were in response to defamation offences. With regard to defamation charges, it must be noted that the public interest is not protected equally across all EU countries (see Defamation above).
Although corporate takedown is more prevalent than state takedown, particularly in the number of individual URLs affected, the outcome of the DG MARKT consultation must be to address both vexatious state and corporate takedown requests. The new communication or directive must be clearer than the EU e-Commerce directive has been with respect to the responsibility of member states. While creating a legal framework that was intended to protect internet intermediaries, the EU e-Commerce directive has failed to be entirely effective in a number of high-profile cases. EU member states use filters to prevent the distribution of child pornography with questionable effectiveness. However, filters have not been used by states to block other content after a Court of Justice of the European Union ruling stated EU law did not allow states to require internet service providers to install filtering systems to prevent the illegal distribution of content. The Court made it clear at the time that such filtering would require ISPs to monitor internet traffic, an infringement under EU law. This has granted European citizens strong protections against systematic web filtering on behalf of states. There continue to be legal attempts to force internet intermediaries to block content that is already in the public domain. In a recent case, brought by the Spanish Data Protection authority on behalf of a complainant, the authority demanded that the search engine Google remove results that pointed to an auction note for a reposessed home due to social security debts. The claimant insisted that referring to his past debts infringed on his right to privacy and asked for the search results to be removed. In June 2013, the Advocate General of the European Court of Justice decided Google did not need to comply to the request to block “legal and legitimate information that has entered the public domain” and that it is not required to remove information posted by third parties. Google has estimated that there are 180 cases similar to this one in Spain alone. A final decision in the case is expected before the end of this year, which could have profound implications for intermediate liability.
[1] In Liberty v. UK (58243/00) the ECHR stated: “95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed”; A. v. France (application no. 14838/89), 23.11.1993: found a violation of Article 8 after a recording was carried out without following a judicial procedure and which had not been ordered by an investigating judge; Drakšas v. Lithuania, 31.07.2012, found a violation of Article 13 (right to an effective remedy) on account of the absence of a judicial review of the applicant’s surveillance after 17 September 2003.
[2] The Internal Market and Services Directorate General
