The European Court of Human Rights (ECHR) has proved itself a vital last line of defence in protecting free speech in the UK, not least in defending a free press.
It was the European Court that ruled Britain had acted unlawfully in gagging newspapers over Spycatcher, it was the European Court that ruled in favour of a journalist punished by the UK courts for refusing to reveal a source, and it is the court in which UK legislation on mass surveillance is currently being challenged to ensure continued protection for journalists‚ and their sources.
Under extensive plans mooted by the UK’s Conservative Party, to be introduced if it won the next election, it claimed ECHR judgements would only be advisory, rather than binding. Final rulings instead would be made by the London-based Supreme Court. The party also pledged to write a new British Bill of Rights, which would reduce or qualify existing rights. They have also suggested the UK government would withdraw from the European Convention if parliament and the British courts did not have the power to overrule ECHR judgements.
Index believes that any UK government that attempts to undermine the ECHR would provide countries with appalling human right records a ready-made excuse to ignore the internationally recognised standards that the court represents.
The Bureau of Investigative Journalism (BIJ) filed an application on Friday with the European Court of Human Rights in Strasbourg challenging current UK legislation on mass surveillance and its threat to journalism.
Lawyers Gavin Millar QC at Doughty Street Chambers, Conor McCarthy at Monckton Chambers and Rosa Curling at Leigh Day solicitors have been assisting the BIJ with its investigation. The group argues that UK legislation imposes constraints on journalistic free expression and does not offer enough protection for journalists’ sources, therefore it is in breach of Articles 8 and 10 of the European Convention of Human Rights (ECHR).
Information uncovered by American whistleblower Edward Snowden appears to highlight how developments in mass surveillance could pose a major threat to the process of journalism. Rules for the interception of data are set out in the Regulation of Investigative Powers Act (RIPA), however, this act does not offer enough controls or checks for external communications. Therefore, any information exchanged through services such as Gmail, Google Docs and Dropbox may not offer the level of confidentiality expected, the group wrote in their application to the ECHR.
It is not only communications which may be scrutinised by the government or secret services; they also have access to metadata, which is the data generated as you use technology. It includes information such as the date and time of phone calls and where emails are sent from. Metadata can be linked to sophisticated computer programs which can enable the user to collate masses of information, building an intricate picture of an individual or organisation’s movements, contacts, sources and lines of enquiry.
According to BIJ, the main implication of unregulated mass surveillance is that journalists can no longer offer anonymity to their sources, or assume that their work is confidential until publication.
This is further compounded by the number of the situations where it is deemed appropriate for surveillance techniques to be enlisted are vaguely defined within the law. It states that data can be intercepted where it is believed that the security or economic interests of the state are involved, meaning investigative journalists especially have to be cautious when covering topics which may be of interest to the government and the intelligence services.
Currently, the BIJ believes the only way in which journalists can be sure they are protected against mass surveillance is to do all of their communications in person, without the use of electronic devices – something which is often impossible, especially if sources are based outside of the UK.
However, under the ECHR journalists should be able to expect protection, the BIJ asserts. At the very least, the group said, this application will spark high-level debate within the government about how journalism and freedom of expression can be protected when governments are using advanced surveillance.
The BIJ says: “In the long term we would like to see proper regulatory control and scrutiny of how the intelligence services use mass surveillance to ensure these techniques and technologies are not being used to hamper legitimate journalistic investigation and inquiry.”
The European Court of Human Rights have today ruled in favour of an Italian journalist sued for defamation, citing Article 10 of the European Convention on Human Rights which protects the right to freedom of expression.
Maurizio Belpietro was convicted in Italy on defamation charges for a story published in national newspaper Quotidiano Nazionale in 2004, when he was paper’s director. The story, penned by an Italian senator, accused Italian judges and prosecutors ‘of using political strategies in their fight against the Mafia.’
Two prosecutors sued both Belpietro and the senator in question, arguing the article was defamatory. The latter was acquitted on the basis that he had written the article in his role as a senator. Belpietro, while also initially acquitted, was in 2009 given a suspended 4-month jail sentence, as well as being ordered to pay substantial sums to the plaintiffs. His appeal was dismissed in 2010.
Belpietro took the case to the European Court of Human Rights, which today ruled that the conviction was in violation of Article 10. He was awarded €10,000 in non-pecuniary damage and €5,000 for costs and expenses.
“Finally now I am appealing to the European Court of Human Rights,” Hrant Dink wrote in his last article for Agos, the newspaper he had edited since 1996. “I don’t know how many years this case will take. But at least I am relieved by the fact that until the end of this case I’ll continue living in Turkey. I’ll be happy, no doubt, if the court’s verdict is positive – this will mean that I will never have to leave my country again.” On 19 January 2007, a week after the article appeared, Hrant Dink was assassinated outside his newspaper. Last week’s decision from the European Court of Human Rights (which condemned Turkey for failing to protect Dink’s life or conduct a proper investigation into his murder, and ordered it to pay Dink’s family 105,000 euros in compensation) may seem like good news, but it is not quite the birthday present the Turkish state apparatus would like it to appear.
Turkish officials announced that they would not appeal to the Grand Chamber of the Court and that they would immediately accept the verdict, which was announced on Dink’s birthday. Yet rather than being the sincere and democratic impulse of the Erdoğan government, the state’s response actually appears to be the afterthought of a criminal – aiming to divert attention from the defence Turkey presented to the court.
Defending the decision of the local court (which found Dink guilty of insulting “Turkishness”, following Article 301 of the penal code), the Turkish state defended itself in the European Court of Human Rights by comparing Hrant Dink to “leaders of national socialism in Germany”.
“In democratic societies,” the Turkish defence read, “the sort of articles that are similar to Dink’s amount to crimes of provocation and they are a danger to public order.” Turkey’s official defence then reminded the court that the European Council had agreed to the suppression of “hate speech”. The defence also noted that it was the same court that had found the leader of a Nazi organisation guilty, because of an article that advocated national socialism. “Dink’s article, also, amounts to ‘hate speech,’” the defence concluded.
When news of the government’s defence made headlines last August, supporters of the governing AKP were shocked by the realisation that there was in fact no real distinction between the bureaucratic, nationalist old guard of the system and the neo-liberal AKP government, whose economic “shock doctrine” they had so vigorously defended.
When Turkey’s defence became public, the Foreign Minister Ahmet Davutoğlu found himself in a very uncomfortable position. The day after the press coverage, he told reporters “I cannot accept this. I believe we can have an agreement with Dink’s family.” Davutoğlu assured the family that the state would not defend its current position and would not appeal if the court ruled against Turkey.
But neither Davutoğlu nor the Turkish President Abdullah Gül, who met Hrant’s brother Hosrof to express his sympathies, seem to be concerned with a fundamental issue in the Dink case – the role of the state apparatus, under the rule of AKP, in helping to foster the climate that led to Dink’s murder. Dink had never been sympathetic to the right-wing agenda of the Armenian diaspora and the article he wrote in 2004 about Turks and Armenians, that famously antagonised his enemies and led to his prosecution, was misinterpreted: it was actually a criticism of Armenian hardliners and not Turks. When Dink wrote that “the purified blood that will replace the blood poisoned by the ‘Turk’ can be found in the noble vein linking Armenians to Armenia, provided that the former are aware of it,” he was urging the Armenian authorities to be more active in strengthening ties with the country’s diaspora, as a basis for a healthier national identity. As a socialist, Dink was irritated by what he called “the English-French alliance” and “imperialist forces” that had historically been motivated by self-interest, causing humanitarian catastrophes in countries like Turkey. Arguing against the right-wing members of the diaspora in the US, Dink wanted Armenian people to get rid of “the blood poisoned by the ‘Turk’” – meaning the hatred against the Turk.
Only a Turkish or an Armenian racist could have a problem with this sentence, and they both did. Dink’s sentence was deliberately misinterpreted in an effort to represent the socialist, anti-imperialist editor as an imperialist who defended the religious and capitalist demands of the Armenians. Perhaps this misinterpretation served right-wingers in Armenia as well as in Turkey. Perhaps it was a useful campaign, eventually destroying a socialist voice demanding a just peace.
Happily, there are Turkish intellectuals who are not afraid of criticising the state apparatus. One such figure is Rıza Türmen, a former judge at the ECHR, who advised the state to admit its mistake instead of defending it. “It is not necessary to defend every case. Sometimes it might be better for the state in moral and legal terms to admit a mistake instead of clinging to a defence. If this case is bothering the government that much, they could conclude the case before it is decided,” he wrote in his column in the daily Milliyet.
The court’s decision coincides with the publication of the first biography of Dink. Entitled “Hrant”, the book was written by the journalist Tûba Çandar, who worked on it for more than three years, interviewing 125 people, including Dink’s family members, close and distant relatives, his university friends and colleagues. The first edition of the book is on the way to becoming a bestseller.
I asked the writer Maureen Freely, who has already translated excerpts into English, about the decision and Turkey’s defence. “I hate the distortions of the government and I also hate seeing how effective they are abroad,” she says. “I hope with this decision that they will begin to understand that they should stop this, for this sort of defence is an anti-democratic insult to the people of Turkey.”