15 Feb 2013 | Uncategorized
A ruling at the Appeal Court in London yesterday could set a dangerous precedent on one of the most important issues in online free speech. The ruling could mean that Internet Service Providers such as Google and Facebook become recognised as “publishers” of material, rather than “mere conduits” and thus legally responsible for material posted on their platforms.
The case, brought by aspiring Conservative politician Payam Tamiz against Google*, hinged on whether or not Google was responsible for comments posted on a blog hosted on its Blogger blogging platform. Tamiz claimed to have been libelled by the “London Muslim” blog, which was hosted on the platform. He had approached Google to ask the blogger to remove the defamatory comments. After five weeks, Google did approach the blogger, asking him to delete the alleged slurs, which he duly did. But Tamiz continued to pursue a case against Google.
Tamiz initially lost his case, and, it should be noted, he lost his appeal this week too.
But the ruling on the appeal raises some interesting questions, and could pave the way for future actions against Internet Service Providers.
The key question seems to be what is a respectable time between being told of alleged defamatory publications, and actually becoming responsible for them.
Referring to Byrne v Deane, a 1937 case involving a defamatory note posted on a golf club notice board, the Master of the Rolls, Lord Justice Richards, commented that “[…]it is in my view open to argument that the time taken was sufficiently long to leave room for an inference adverse to Google Inc on Byrne v Deane principles.
“The period during which Google Inc might fall to be treated on that basis as a publisher of the defamatory comments would be a very short one, but it means that the claim cannot in my view be dismissed on the ground that Google Inc was clearly not a publisher of the comments at all.”
The suggestion is that eventually, Google does become responsible for content.
This reads like a threat to the concept of “mere conduit”, the concept enshrined in the European Union e-Commerce Directive establishing that ISPs cannot be held responsible for content on third party blogs, Facebook updates, tweets etc.
That concept is increasingly coming under threat. Just recently, Belfast lawyer Paul Tweed suggested to the Guardian that companies such as Google, Facebook and Twitter could be subject to “EU defamation cases”, in the courts in Ireland, where all three companies have major European bases.
Such a move could seriously threaten the way the web works. We rely on private ISPs to host our various interactions. Making them legally responsible for everything we post could lead to a situation where they severely narrow their terms of service, and even attempt to engage in some kind of censorship in order to avoid litigation. This shift in responsibility is not what the ISPs want, and certainly not what web users need.
*Google is one of Index on Censorship’s funders. Index’s editorial positions are independent of all its funders
13 Feb 2013 | Index Index
YouTube filed lawsuit against the Russian government on 11 February, to contest its latest cybercrime law to censor websites deemed harmful to children. The case was filed after Russian regulators decided to block a joke YouTube video entitled ”Video lesson on how to cut your veins =D,” which showed viewers how to fake slitting their wrists. Rospotrebnadzor, the federal service for consumer rights, said the video glorified suicide and was therefore illegal under the law enacted in November, which has been criticised for being vague and overtly broad. YouTube owners Google proceeded to restrict access to the video in Russia before the lawsuit was filed. In the first legal challenge made against the law, YouTube objected to the ruling in a statement released on 12 February, saying that the law should not extend to limiting access on videos uploaded for entertainment purposes.
An Indian soldier stands alert in Srinagar, Kashmir during a curfew to curb protest over the hanging of Afzal Guru
A politician in Azerbaijan has offered a cash reward to any person who finds and cuts of the ear of an author who wrote a book about the conciliation of Azeris and Armenians, it was reported on 12 February. Akram Aylisli’s book Stone Dreams has stirred up controversy for referencing Azerbaijan’s violence against Armenians during riots preceding the collapse of the Soviet Union. The party of Hafiz Haciyev, the head of a pro-government political group in Azerbaijan have offered 10,000 manat (£8,000) for the ear of the writer, as part of a sustained hate campaign against Haciyev. He has been expelled from the Union of Writers, had his presidential pension revoked and his wife and son have lost their jobs. Protestors around the country have burned books and effigies of Haciyev. As Azerbaijan’s President, Ilham Aliyev approaches re-election later this year, the sustained negativity projected onto Haciyev is said to be a facade to hide the government’s internal issues amidst growing unrest.
Following protests in Kashmir over the execution of a man convicted of terrorism on 9 February, Kashmir’s internet and news outlets have been suppressed, and the entire Kashmir valley subjected to a strict curfew. Television channels and mobile internet were suspended immediately after Afzal Guru was hanged on 9 February. Local newspapers were forced to cease reporting the following day without warning — and have yet to be published since. Only the government, using state run service provider Bharat Sanchar Nigam Limited, has access to the internet. Some residential districts of Srinagar reported to receive some TV news channels on 10 February, but privately-owned channels had to suspend news services at the request of the government. Afzal Guru’s execution in a New Delhi prison on 9 February prompted protests in three areas of India administered Kashmir, surrounding claims the men accused were given an unfair trial. Guru was sentenced to death for helping to plot a 2001 attack on the Indian parliament that left 14 people dead.
In Somalia, a journalist has been detained without charge for defending press freedom, after a woman who claimed she was raped and the journalist who interviewed her were imprisoned. Daud Abdi Daud remains in custody since 5 February, after he spoke out in a Mogadishu court against the one year jail sentence given to Abdiaziz Abdinuur and the alleged rape victim on 5 February. Daud Abdi said journalists should be able to interview who they wish, saying he would make attempts to interview the president’s wife, causing the police to arrest him. Daud Abdi was later transferred from police custody into Mogadishu Central Prison. On 6 February, the attorney general ordered his continued detention at the Police’s Central Investigation Department.
Carmarthenshire County Council’s decision to pursue a libel case using public funding has been criticised. The council’s chief executive Mark James appeared in London’s Royal Courts of Justice today (13 February) where he and blogger Jacqui Thompson are suing each other for defamation following a series of comments posted online. James’s costs were indemnified by the council after a controversial decision in 2008, allowing public money to be used to fund libel lawsuits. Carmarthenshire County Council is believed to be the only authority to allow this in the UK, and the Welsh Assembly has questioned its legality, after an order they made in 2006 forbade local authorities from offering indemnities in libel cases. Carmarthenshire County Council said they had relied upon section 111 of the Local Government Act 1972, rather than the 2006 law. The case likely to cost a six or seven figure sum, according to reports.
13 Feb 2013 | Uncategorized
YouTube filed lawsuit against the Russian government on 11 February, to contest its latest cybercrime law to censor websites deemed harmful to children. The case was filed after Russian regulators decided to block a joke YouTube video entitled “Video lesson on how to cut your veins =D,” which showed viewers how to fake slitting their wrists. Rospotrebnadzor, the federal service for consumer rights, said the video glorified suicide and was therefore illegal under the law enacted in November, which has been criticised for being vague and overtly broad. YouTube owners Google proceeded to restrict access to the video in Russia before the lawsuit was filed. In the first legal challenge made against the law, YouTube objected to the ruling in a statement released on 12 February, saying that the law should not extend to limiting access on videos uploaded for entertainment purposes.
An Indian soldier stands alert in Srinagar, Kashmir during a curfew to curb protest over the hanging of Afzal Guru
A politician in Azerbaijan has offered a cash reward to any person who finds and cuts of the ear of an author who wrote a book about the conciliation of Azeris and Armenians, it was reported on 12 February. Akram Aylisli’s book Stone Dreams has stirred up controversy for referencing Azerbaijan’s violence against Armenians during riots preceding the collapse of the Soviet Union. The party of Hafiz Haciyev, the head of a pro-government political group in Azerbaijan have offered 10,000 manat (£8,000) for the ear of the writer, as part of a sustained hate campaign against Haciyev. He has been expelled from the Union of Writers, had his presidential pension revoked and his wife and son have lost their jobs. Protestors around the country have burned books and effigies of Haciyev. As Azerbaijan’s President, Ilham Aliyev approaches re-election later this year, the sustained negativity projected onto Haciyev is said to be a facade to hide the government’s internal issues amidst growing unrest.
Following protests in Kashmir over the execution of a man convicted of terrorism on 9 February, Kashmir’s internet and news outlets have been suppressed, and the entire Kashmir valley subjected to a strict curfew. Television channels and mobile internet were suspended immediately after Afzal Guru was hanged on 9 February. Local newspapers were forced to cease reporting the following day without warning — and have yet to be published since. Only the government, using state run service provider Bharat Sanchar Nigam Limited, has access to the internet. Some residential districts of Srinagar reported to receive some TV news channels on 10 February, but privately-owned channels had to suspend news services at the request of the government. Afzal Guru’s execution in a New Delhi prison on 9 February prompted protests in three areas of India administered Kashmir, surrounding claims the men accused were given an unfair trial. Guru was sentenced to death for helping to plot a 2001 attack on the Indian parliament that left 14 people dead.
In Somalia, a journalist has been detained without charge for defending press freedom, after a woman who claimed she was raped and the journalist who interviewed her were imprisoned. Daud Abdi Daud remains in custody since 5 February, after he spoke out in a Mogadishu court against the one year jail sentence given to Abdiaziz Abdinuur and the alleged rape victim on 5 February. Daud Abdi said journalists should be able to interview who they wish, saying he would make attempts to interview the president’s wife, causing the police to arrest him. Daud Abdi was later transferred from police custody into Mogadishu Central Prison. On 6 February, the attorney general ordered his continued detention at the Police’s Central Investigation Department.
Carmarthenshire County Council’s decision to pursue a libel case using public funding has been criticised. The council’s chief executive Mark James appeared in London’s Royal Courts of Justice today (13 February) where he and blogger Jacqui Thompson are suing each other for defamation following a series of comments posted online. James’s costs were indemnified by the council after a controversial decision in 2008, allowing public money to be used to fund libel lawsuits. Carmarthenshire County Council is believed to be the only authority to allow this in the UK, and the Welsh Assembly has questioned its legality, after an order they made in 2006 forbade local authorities from offering indemnities in libel cases. Carmarthenshire County Council said they had relied upon section 111 of the Local Government Act 1972, rather than the 2006 law. The case likely to cost a six or seven figure sum, according to reports.
24 Jan 2013 | Uncategorized
Governments and courts in 31 countries requested data from 33,634 Google users or accounts in the second half of 2012 according to the company’s latest Transparency Report.
While the number of data requests rose by two per cent — from 20,938 to 21,389 — the proportion of requests Google fully or partially complied with dropped by one point — to 66 per cent.
The US led the pack in number of requests, accounts specified and percentage honoured. American law enforcement agencies issued 8,438 requests for data from 14,791 accounts, 88 per cent of which Google fully or partially complied with. Other countries issuing more than 1,000 requests in late 2012 were India, France, Germany, the UK and Brazil.
The 1986 Electronic Communications Privacy Act (ECPA) compels Google to comply with government requests. This was the company’s first Transparency Report to breakdown the proportion of requests by legal process used.
68 per cent of requests came via subpoenas — without a warrant — under the ECPA. Warrants are not required for access to data more than 180 days old. 22 per cent of requests came with a warrant, and the remaining 10 per cent were uncategorised.
“We believe the US laws should be updated,” William Echikson, Head of Free Expression Policy and PR for EMEA at Google, told Index. “Our users deserve to have their online correspondence and documents afforded the same legal protections from government access as they get for their physical documents.”
According to the report, Google reviews each request to ensure its compliance with “both the spirit and the letter of the law” and sometimes tries to narrow the data requested.
“Debates about government surveillance should start with data,” Echikson added. “Our disclosures are only a tiny sliver of what’s happening on the Internet at large.”
Echikson said he hopes more companies and governments will join Google to increase transparency and keep citizens informed by releasing similar data. Competitors and collaborators alike are doing just that, but to varying degrees and with varying success.
In 2012, Dropbox, LinkedIn and Twitter shared similar statistics. The Electronic Frontier Foundation’s (EFF) 2012 report “Who Has Your Back” rates 18 companies on transparency regarding government requests for user data. These ratings take into account whether companies tell their users about government data demands and whether they fight for user privacy in courts and congress. Only Sonic.net, an ISP based in California, earned full stars in each category of EFF’s privacy and transparency report.
Google’s latest Transparency Report does not include content removal requests. Company officials said those numbers will be released separately in several months time.
Brian Pellot is the digital policy adviser at Index.
