The EU’s commitments to free expression: Libel and privacy

Max Mosley photographed at home in London. Photo Rick Pushinsky.

The law of libel, privacy and national “insult” laws vary across the European Union. In a number of member states, criminal sanctions are still in place and public interest defences are inadequate, curtailing freedom of expression.

The European Union has limited competencies in this area, except in the field of data protection, where it is devising new regulations. Due to the impact on freedom of expression and the functioning of the internal market, the European Commisssion High Level Group on Media Freedom and Pluralism recommended that libel laws be harmonised across the European Union. It remains the case that the European Court of Human Rights is instrumental in defending freedom of expression where the laws of member states fail to do so. Far too often, archaic national laws have been left unreformed and therefore contain provisions that have the potential to chill freedom of expression.

Nearly all EU member states still have not repealed criminal sanctions for defamation – with only Croatia,[1] Cyprus, Ireland, Romania and the UK[2] having done so. The parliamentary assembly of the Council of Europe called on states to repeal criminal sanctions for libel in 2007, as did both the Organization for Security and Co-operation in Europe (OSCE) and UN special rapporteurs on freedom of expression.[3] Criminal defamation laws chill free speech by making it possible for journalists to face jail or a criminal record (which will have a direct impact on their future careers), in connection with their work. Many EU member states have tougher sanctions for criminal libel against politicians than ordinary citizens, even though the European Court of Human Rights ruled in Lingens v. Austria (1986) that:

“The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual.”

Of particular concern is the fact that insult laws remain in place in many EU member states and are enforced – particularly in PolandSpain, and Greece – even though convictions are regularly overturned by the European Court of Human Rights. Insult to national symbols is also criminalised in Austria, Germany and Poland. Austria has the EU’s strictest laws in this regard, with the penal code criminalising the disparagement of the state and its symbols[4] if malicious insult is perceived by a broad section of the republic. This section of the code also covers the flag and the federal anthem of the state. In November 2013, Spain’s parliament passed draft legislation permitting fines of up to €30,000 for “insulting” the country’s flag. The Council of Europe’s Commissioner for Human Rights, Nils Muiznieks, criticised the proposals stating they were of “serious concern”.

There is a wide variance in the application of civil defamation laws across the EU – with significant differences in defences, costs and damages. Excessive costs and damages in civil defamation and privacy actions is known to chill free expression, as authors fear ruinous litigation, as recognised by the European Court of Human Rights in MGM vs UK.[5] In 2008, Oxford University found huge variants in the costs of defamation actions across the EU, from around €600 (constituting both claimants’ and defendants’ costs) in Cyprus and Bulgaria to in excess of €1,000,000 in Ireland and the UK. Defences for defendants vary widely too: truth as a defence is commonplace across the EU but a stand-alone public interest defence is more limited.

Italy and Germany’s codes provide for responsible journalism defences instead of using a general public interest defence. In contrast, the UK recently introduced a public interest defence that covers journalists, as well as all organisations or individuals that undertake public interest publications, including academics, NGOs, consumer protection groups and bloggers. The burden of proof is primarily on the claimant in many European jurisdictions including Germany, Italy and France, whereas in the UK and Ireland, the burden is more significantly on the defendant, who is required to prove they have not libelled the claimant.

Privacy

Article 8 of the European Convention on Human Rights protects the right to a private life throughout the European Union. [6] The right to freedom of expression and the right to a private right are often complementary rights, in particular in the online sphere. Privacy law is, on the whole, left to EU member states to decide. In a number of EU member states, the right to privacy can restrict the right to freedom of expression because there are limited protections for those who breach the right to privacy for reasons of public interest.

The media’s willingness to report and comment on aspects of people’s private lives, in particular where there is a legitimate public interest, has raised questions over the boundaries of what is public and what is private. In many EU member states, the media’s right to freedom of expression has been overly compromised by the lack of a serious public interest defence in privacy law. This is most clearly illustrated by the fact that some European Union member states offer protection for the private lives of politicians and the powerful, even when publication is in the public interest, in particular in France, Italy and Germany. In Italy, former Prime Minister Silvio Berlusconi used the country’s privacy laws to successfully sue the publisher of Italian magazine Oggi for breach of privacy after the magazine published photographs of the premier at parties where escort girls were allegedly in attendance. Publisher Pino Belleri received a suspended five-month sentence and a €10,000 fine. The set of photographs proved that the premier had used Italian state aircraft for his own private purposes, in breach of the law. Even though there was a clear public interest, the Italian Public Prosecutor’s Office brought charges. In Slovakia, courts also have a narrow interpretation of the public interest defence with regard to privacy. In February 2012, a District Court in Bratislava prohibited the distribution or publication of a book alleging corrupt links between Slovak politicians and the Penta financial group. One of the partners at Penta filed for a preliminary injunction to ban the publication for breach of privacy. It took three months for the decision to be overruled by a higher court and for the book to be published.

The European Court of Human Rights rejected former Federation Internationale de l’Automobile president Max Mosley’s attempt to force newspapers to give prior notification in instances where they may breach an individual’s right to a private life, noting that the requirement for prior notification would likely chill political and public interest matters. Yet prior notification and/or consent is currently a requirement in three EU member states: Latvia, Lithuania and Poland.

Other countries have clear public interest defences. The Swedish Personal Data Act (PDA), or personuppgiftslagen (PUL), was enacted in 1998 and provides strong protections for freedom of expression by stating that in cases where there is a conflict between personal data privacy and freedom of the press or freedom of expression, the latter will prevail. The Supreme Court of Sweden backed this principle in 2001 in a case where a website was sued for breach of privacy after it highlighted criticisms of Swedish bank officials.

When it comes to data retention, the European Union demonstrates clear competency. As noted in Index’s policy paper “Is the EU heading in the right direction on digital freedom?“, published in June 2013, the EU is currently debating data protection reforms that would strengthen existing privacy principles set out in 1995, as well as harmonise individual member states’ laws. The proposed EU General Data Protection Regulation, currently being debated by the European Parliament, aims to give users greater control of their personal data and hold companies more accountable when they access data. But the “right to be forgotten” clause of the proposed regulation has been the subject of controversy as it would allow internet users to remove content posted to social networks in the past. This limited right is not expected to require search engines to stop linking to articles, nor would it require news outlets to remove articles users found offensive from their sites. The Center for Democracy and Technology referred to the impact of these proposals as placing “unreasonable burdens” that could chill expression by leading to fewer online platforms for unrestricted speech. These concerns, among others, should be taken into consideration at the EU level. In the data protection debate, freedom of expression should not be compromised to enact stricter privacy policies.

This article was posted on Jan 2 2013 at indexoncensorship.org

[1] Article 208 of the Criminal Code.

[2] Article 168(2) of the Criminal Code.

[3] Article 248 of the Criminal Code prohibits ‘disparagement of the State and its symbols, ibid, International PEN.

[4] Index on Censorship, ‘UK government abolishes seditious libel and criminal defamation’ (13 July 2009)

[5] More recent jurisprudence includes: Lopes Gomes da Silva v Portugal (2000); Oberschlick v Austria (no 2) (1997) and Schwabe v Austria (1992) which all cover the limits for legitimate criticism of politicians.

[6] Privacy is also protected by the Charter of Fundamental Rights through Article 7 (‘Respect for private and family life’) and Article 8 (‘Protection of personal data’).

On the death of journalism – and my Indy career

I’m on holiday. I didn’t mean to be, but I am. I did mean to be here, in this tiny village, on a mountain in Spain. I did mean to be sitting on this hillside, gazing out at olive groves, and pine trees and a blue, blue sky. But what I meant to be doing was write. I was meant, now that I’m freelance, to be doing the kind of writing that means you can actually eat some food and pay some bills. I was meant, in fact, to be writing a little e-book. The trouble is, I didn’t have time to do the research. There are some things that still need research. Proper research, that is, which means meeting people, and talking to people, and looking at things in real life, and not just on Google. The trouble is that to do proper research, you need time. And time is very, very, very hard to find when you’re freelance.

I didn’t actually plan to be freelance. Like all journalists, I knew I probably would be one day. Like all journalists, I knew that newspapers were, and are, and unfortunately soon will be, going down the pan. This makes me more sad than I can say. I believe in journalism. I believe in the kind of journalism I was able to do at The Independent for 10 years, and the kind I did last year looking into the state of nursing, and which got me (though it seems immodest to say it) on the shortlist for a prize that bears a great writer, and journalist’s, name. I think that to look at things, as clearly as you can, and write about them, as clearly as you can, and think about them, as clearly as you can, as Orwell did, and as all good journalists should aim to do, is a good, and proper, and maybe even a noble thing to do. Doing this, or trying to do this, felt to me like a vocation. But a vocation isn’t a hobby. Someone has to pay the rent.

We all know that the clock is ticking. Even Rupert Murdoch knows that the clock is ticking. During the Leveson report, he gave newspapers five to ten years. When I was asked, last autumn, to speak about Leveson at the Battle of Ideas, I tried to think about what newspapers should and shouldn’t do, and what readers should and shouldn’t want, but actually all I could think was this: we are fiddling while Rome burns.

When I saw the play Enquirer, in an office block in the City, it felt like an elegy to an industry that was dying. It probably felt like that because it was. Some of the conversations in it, which were real conversations put into a kind of collage that made up a script, were between people I had worked with, and knew. Some of them, for example, were between Roger Alton, who was one of the nicest editors I ever worked for, and who sent me flowers when I was diagnosed with cancer, and Deborah Orr, who also used to be a colleague, and who is clever, and fierce, and kind. The play talked about Leveson. Of course it talked about Leveson. But most of all it talked about how newspapers were, or soon would be, a relict of the past. The play made me cry, but I think it made a lot of journalists cry. Deborah told me that in Glasgow, where it was first performed, in a building overlooking what used to be the shipyards, almost everyone cried. At the end, she said, the sunset they could see from the window was like a message to a dying industry from one that was already dead.

When I saw Chimerica, a couple of weeks ago, I nearly cried again. The play, which is very, very good, and talks about things plays ought to talk about, like the balance of power between East and West, and between human rights and money, and between the old world and the new, is also, in a way, an elegy to an industry that will soon be lost. It’s set largely in the US, where budgets for newspapers are still much bigger, and more lavish, than they are here. (No wonder the Washington Post needed Amazon profits to keep it going, though the irony of the man who used the internet to kill the high street bailing out the other big industry that’s being killed by the internet can hardly have been lost.) The photographer in the play, who’s trying to revive his career with a story about the “tank man” hero of Tiananmen Square, seems to be shocked that the editor isn’t all that keen to pick up the very, very big costs the story will incur. He’s even more shocked when the editor tells him he has to drop the story, for reasons to do with (Chinese) money, and power. The photographer seemed to think, as many journalists have thought, that it was his right to write the story he wanted to write. I’ve been lucky, over 10 years at The Independent, to write, at least most of the time, the stories (and columns and interviews and features) I’ve wanted to write. But you can only write them for as long as the owner wants to pay.

Newspapers are a rich man’s hobby. They’re a very good way of getting a bit of kudos, and a bit of power. They’ll get you invitations to Downing Street, and opportunities to mix with the great, and what passes for the good. What they won’t do, or hardly ever do, is make you money. The Guardian loses about £40m a year (though last year, apparently, it cut its losses by nearly a third). The Times loses about £40m a year. The Independent loses between £10m and £20m a year. Forty, twenty or even ten million is a lot of money to burn. When people bought newspapers, or, to put it in a more modern way, were happy to “pay for content”, it was bad enough. But how do you try to limit your losses when people expect their “content” – their words, their arguments, their virtual encounters with the great, the good and the reasonably talented – to be as free as the air they breathe?

The answer, it seems, is you don’t. So what you do is cut your costs. You might, for example, want to get rid of all your expensive staff writers. You might decide that “content” is something you can get from a college leaver, for 18, or 19, or 20 grand. You might even decide that the important thing isn’t to get the right words in the right order, but just to get some words – any words – down.

So, we’re losing our jobs. We journalists always knew we’d lose our jobs. We knew it in the way smokers know that sucking a little stick of tobacco gives you cancer. We knew it, but when it happens, it’s still a shock. For me, the week before it all blew up – and I think we can probably say that shouting at the editor so that he threatens to call security does count as things “blowing up” – I had been asked to address a seminar at the House of Commons and present a film for The One Show to coincide with the release of The Francis Report. One moment, I was being asked, by politicians, and TV presenters, and radio presenters, for my opinion on whatever I’d written about that morning. The next moment, I didn’t have a job. The next moment – the next day, to be a little bit more precise – I was telling Harriet Harman, on the phone, while pacing round my study, that I’d been looking forward to doing the interview we’d fixed, for a series on “women and power”, but that it didn’t seem all that appropriate any more, since I didn’t seem to have any power – and that my career as a journalist on a national newspaper seemed to have come to a sudden end.

Since then, I’ve done what freelancers do. I’ve sent a lot of emails. I’ve had a lot of meetings. I’ve discovered, as freelancers apparently often do, that most of your working hours, at least for the first few months of being freelance, are spent trying to get work. You can only do the work – or start to do the work – when the working day ends. Which means, or seems to mean, you end up working pretty much all the time.

It has been an interesting time. I don’t just mean that it’s been interesting in the way the Chinese mean interesting.  All journalists know we live in “interesting times”, and most think some boring times would make a nice change. But it really has been interesting. I’ve started reviewing regularly again – fiction, and non-fiction – for the Sunday Times. I’ve been able to do some long-form journalism for the Sunday Times magazine. I’ve written the odd column, for the Guardian, and for the Guardian’s comment website, Comment is Free, but I haven’t had to have an opinion about one of the big issues of the day, once or twice week, as I have done for the past seven years. I’ve worked with some exceptionally nice editors, and I always have what you don’t always have when you’re a staff journalist on a daily paper: the right to say no. But when I’ve looked at the next day’s front pages, for the Sky and BBC News press previews, I haven’t quite been able to decide whether it’s still my world, or not. I know it’s where my heart is. But the body also has to be fed.

Like most journalists, I want to think, and I want to write. Like most journalists, I’ve been lucky to do this for so long. Sure, we can write books, but most writers can’t earn a living any more by writing books. Or at least they can’t unless what they write about is secret codes or sadistic sex. When you’ve worked on a newspaper, and had to deal with some bullying bosses, you’re quite likely to find yourself wanting the home, and the bedroom, to be a sadism-free zone.

We’re meant to be blogging. We’re meant, in other words, to be giving the thing we used to be paid for away, in the ether, for free. Plumbers haven’t yet been told they should mend toilets for free. Builders aren’t yet expected to put in new kitchens for the thrill of being asked. But we’re all meant to be building our “brand”. I don’t know about writers as brands. I suppose a writer can be a brand. But I’d rather think writing was less about brand, and much, much more about “voice”.

So, here I am, freelance and free, on a mountain in Spain. I’m at a writers’ retreat. It’s a very lovely writers’ retreat. It has, as you’ll see from the website, if you look at it (www.oldolivepress.com), a lovely view, a lovely terrace, and a lovely pool. It also has a lovely library. When I looked at the library, and at the 3000 books I was suddenly dying to read, I thought I could be locked in that library and not be too upset if I never had to leave. It also has poets. There’s a poet, Christopher North, who runs the place with his wife, Marisa, and there’s a poet, Tamar Yoseloff, who’s running a course here now. I’m not doing it. I couldn’t, I think, write poetry, even if I tried. I used to run the Poetry Society, and I’ve worked with some of the best poets in the world. I only like good poems, and I’m pretty damn sure that any I wrote would be bad.

I’m not here to write poems. I can’t write the little e-book I was going to write, because I haven’t done the research. What I can do is write a little bit on my blog every day (or almost every day) and gaze at the mountains, and the clouds, and wander round the village, and look at the little houses, painted blue, and green, and pink, and red, and listen to the silence, and remember that sometimes what a recovering journalist needs, more than work, or money, or even a plan for the future, is sunshine, and peace.

This article was originally published on 4 Sept 2013 at Christina Patterson’s blog Independent Thinking.

Miranda detention is a “defining point”

Schedule 7 of the Terrorism Act 2000 and the threat to journalistsI 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

Free expression in the news

#DONTSPYONME
Tell Europe’s leaders to stop mass surveillance #dontspyonme
Index on Censorship launches a petition calling on European Union Heads of Government to stop the US, UK and other governments from carrying out mass surveillance. We want to use public pressure to ensure Europe’s leaders put on the record their opposition to mass surveillance. They must place this issue firmly on the agenda for the next European Council Summit in October so action can be taken to stop this attack on the basic human right of free speech and privacy.
(Index on Censorship)

BAHRAIN
Prominent Bahrain blogger arrested: Activist
The massive street demonstrations that roiled Brazil last month have eased but more radical groups are coming to the fore and resorting to violence.
(Strat Risks)

BRAZIL
Brazil’s social unrest easing but turning more radical
A rights activist in Bahrain says authorities have arrested a prominent blogger just days after warning of harsher measures against anti-government protesters in the violence-wracked Gulf kingdom.
(Ahram Online)

CHINA
Singer’s Arrest in China Fires Free Speech Debate
Hours after a man with long-running grievances against officialdom set off a homemade explosive at Beijing’s airport, a singer-songwriter turned to the Internet to release her own sarcastic wish list of to-be-bombed targets.
(ABC News)

China dismisses allegations over obstruction of Google’s Gmail service
Chinese authorities say Google’s claims that they are to blame for technical problems with the Gmail are ‘unacceptable’
(The Guardian)

GERMANY
How Hollywood bowed to the wishes of Hitler
A Harvard film scholar has revealed in terrifying detail how Hollywood was at the whim of the Nazis throughout the 1930s – censoring films and dropping others in a sinister collaboration with Hitler.
(The Daily Mail)

GLOBAL
The Picket Fenced Internet: Why Free Communication Is Over…If It Ever Existed?
The most harrowing realization of Edward Snowden’s NSA leaks is that the World Wide Web is no longer free.
(Huffington Post)

PAKISTAN
‘The biggest form of blasphemy we commit is to force another to live in fear’
YouTube has been blocked in Pakistan since September 2012 for hosting the “blasphemous” Innocence of Muslims film. But now the country’s parliament has been asked to define what actually constitutes blasphemy. Here are some suggestions to get them going
(Index on Censorship)

RUSSIA
Videotaped Bullying Of Gay Russian Youths Highlights Growing Homophobia
Some show youths being forced to drink urine, or having it poured over their heads. Others show young men being taunted with phallic sex toys, threatened with axes, and forced to carry wooden crucifixes.
(Radio Free Europe)

Russia’s anti-internet piracy law faces backlash
It’s championed by some as a new weapon to defend content-makers, decried by others as a blunt tool that could extend censorship of the net.
(BBC)

SOUTH AFRICA
SA’s outdated censorship legislation
Cracks cobwebbing across the broken screen of his tablet PC seem a metaphor for the stormy greeting given film maker Jahmil XT Qubeka’s third feature, Of Good Report.
(Financial Mail)

UNITED KINGDOM
Free speech is a bitter Twitter privilege
For too long the trolls have hidden behind cowardly anonymity in a virtual world they believe to be free of consequence
(The Daily Mirror)

Cameron Looks to China to Supply Europe’s First Internet Censorship Wall in Britain
So David Cameron’s government has finally laid his cards on the table. Getting the press and the public to comply with the draconian Leveson Star Chamber’s clampdown on freedom of expression and information was a hard sell, to say the least.
(21st Century Wire)

Ex-Tory treasurer Peter Cruddas wins £180,000 libel award
Billionaire businessman also awarded interim costs of £500,000 against The Sunday Times
(The Independent)

Twitter Abuse Isn’t a Censorship or Freedom of Speech Issue, It’s a Human Issue
Imagine you’re queuing up for a coffee. You order, and pull out a £10 note with which to pay. “Wouldn’t it be great to have a woman on a banknote?” you might remark as you hand it to the barista. “F*ck you, you f***ing sl*t,” he snarls back. “I’m going to wait for you outside later and rape you.” What do you do? Cry? Run away? Look around for help? Let’s say you look around for help. You turn to the woman standing next to you.
(Huffington Post)

UNITED STATES
Keller lawsuit vs. gamer EA Sports, NCAA clears major hurdle
Free speech – at least in the world of video games – took a hit Wednesday in the ongoing battle regarding player likenesses.
(CBS Sports)

No, the IRS Did Not Target Progressives Like It Targeted Conservatives
NPR’s politics blog has published a chart — compiled from a House Ways and Means staff analysis — of the different levels of IRS targeting between conservative and progressive groups. Bottom line? Far more conservative groups faced IRS scrutiny, they faced more questions, and were approved at a much lower rate than progressives. The chart is based on the IRS’s now-discredited “BOLO” (be on the lookout) lists.
(American Center for Law and Justice)

Does chief have right to post profane gun videos?
Police Chief Mark Kessler of Gilberton, Schuylkill County, has come under fire after posting profanity-laced videos on YouTube. Some have argued it’s a free-speech issue. Others have said it’s outrageous behavior for a police chief who is also a school board member. Reporter Nicole Radzievich” talks with two people with opposing viewpoints.
(The Morning Call)

Your free speech right comes with a hefty price tag these days’
They used to say freedom of the press belongs to those who can afford to own one. Perhaps, we should now say the right to exercise your free speech rights before local government agencies belongs only to those who can afford to pay for sending out public notices.
(4th ST8)

ACLU says begging is ‘free speech’
Calling the statute an infringement on free speech, the American Civil Liberties Union wants a federal judge to block police in Arizona from enforcing a law making begging a crime.
(Maricopa Monitor)


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