Since becoming a barrister in 1987, Sir Keir Starmer has made headlines for offering free legal counsel during the McLibel trial, won awards as a leading human rights QC, and set precedents as director of public prosecutions (DPP) in England and Wales. During the five-year post as DPP, he took on prosecution guidelines for the abuse of women and sexual abuse of children. He also tackled the as yet largely unchartered territory of cases involving social media and is mooted as a Labour candidate in the UK’s 2015 general election.
In this Index podcast Rachael Jolley, editor of Index on Censorship magazine, speaks to the newly knighted former DPP about his time overseeing the prosecution service, plus the right to offend, whistleblowing and legal challenges for social media.
On online abuse: “We haven’t got a law that has been designed to deal with this. We are falling back on the Communications Act, which was designed for abusive messages on telephones in the 1930s that might have been listened to by exchange staff.”
On the web: “You can’t have a law-free zone. If you simply say it doesn’t matter that the court order is breached because you are using social media, you undermine the entire criminal justice system and you remove all the protection that’s intended for very vulnerable victims.”
On whistleblowing: “It is important that legal protection is there and that everyone appreciates it. A lot of people labour under the misrepresentation that if you whistleblow you are necessarily engaging in wrongdoing and it is something you can’t do. There is still a great fear.”
Read the full interview in the latest issue of Index on Censorship magazine. This issue’s writers include Lyse Doucet, David Aaronovitch and Julian Baggini. You can buy it, or take out a subscription here.
Index on Censorship calls upon the US government to uphold the First Amendment. Whistleblowers such as Edward Snowden — as well as journalists reporting on the Prism scandal, who have come under fire — should be protected under the first amendment, not criminalised.
Index also condemns the alleged tapping of communications cables by the NSA and GCHQ, that would allow the mass surveillance of both meta data and content from individuals’ private communications.
Index CEO Kirsty Hughes said:
“The mass surveillance of citizens’ private communications is unacceptable – it both invades privacy and threatens freedom of expression. The US government cannot use the excuse of national security to justify either surveillance on this scale or the extradition of Snowden for revealing it.”
A former CIA officer was sentenced on 25 January to more than two years in prison for leaking official information to the media. John Kiriakou had released the name of a covert officer to a reporter in 2007 in media interviews which were among the first to confirm the waterboarding of detainees, including al-Qaida terrorist Abu Zubaydah. Defenders say the former officer acted as a whistleblower to the CIA’s use of torture to interrogate detained terrorists, whilst prosecutors said his intention was purely to gain fame and status. He pleaded guilty to violating the Intelligence Identities Protection Act in 2012, the first conviction under the law in 27 years. Kiriakou was initially charged under the World War I-era Espionage Act but swapped charges in a plea deal. The deal meant US district judge Leonie Brinkema was restricted to imposing a two and a half year sentence — which she said she would have extended if she could.
Poster for the play Behzti – Gurpreet Bhatti has faced censorship of another play by the BBC
Human rights defenderAlaa Abdel Fattah was arrested in Egypt on 29 January for allegedly defaming a judge. The political activist and 2012 Index on Censorship awards nominee was released on bail by Judge Tharwat Hammad on Tuesday, as part of a wider investigation into allegations against private satellite channels. Charges have been filed by 1,164 judges, who complained that TV station workers had invited guests on air who had criticised the judiciary. Abdel Fattah was charged with incitement against the military in October 2011 during the Maspero demonstrations in which 27 protestors were killed.
Playwright Gurpreet Bhatti said that her play scheduled for broadcast on BBC Radio 4 on 1 February has had lines removed from the script. During Index on Censorship’s arts conference Taking the Offensive at the Southbank Centre on 29 January, Bhatti told attendees that her play Heart of Darkness had been altered by broadcasters. The episode, due to be played on the Afternoon Drama slot, followed the investigation into the honour killing of a 16 year old Asian girl – a case investigators are told to handle sensitively because of her Muslim heritage. Bhatti’s play Behzti was axed from a Birmingham theatre in 2004 following protests from the Sikh community. The playwright denied the BBC’s compliance department accusations that lines were offensive in Heart of Darkness, saying “we live in a fear-ridden culture.”
Germany’s foreign ministersaid on 28 January that Russia’s draft bill banning “homosexual propaganda” could harm Russia’s ties with Europe. In a meeting on Monday evening, Guido Westerwelle told Russia’s ambassador in Berlin, Vladimir Grinin, that the law violated the European human rights convention and will harm Russia’s image and relationships within Europe. The draft legislation was passed by the State Duma, Russia’s lower house of parliament, on 25 January and prompted protests by the gay community, including a kiss-in protest by activists which was broken up by police on Friday. The law will ban the promotion of homosexuality amongst children and is alleged to intend consolidation of public support for President Vladimir Putin.
On 28 January, Twitter began censoring porn related searches on its video sharing app Vine yesterday, after a six-second porn clip was accidentally made editor’s pick. Searching for terms such as #sex and #porn came up with no results, but users could still access pornographic content if it had been posted under a different hashtag. The social networking site apologised for circulating the video of a graphic sex act on the app launched last week, blaming the slip-up on a “human error”. Vine was introduced to Twitter as a video programme similar to Instagram, where users can upload six second video loops, some of which proving to appeal to a more adult audience. Last week, Apple banned 500px, a photography app with a section dedicated to nudity, from its app store.
Human Rights lawyer Geoffrey Robertson QC was this week awarded the New York Bar Association’s annual award for distinction in law and international affairs. In his acceptance speech he proposed new legal principles for whistleblowers:
The First Amendment to the US Constitution is based on Madison’s principle that government information should be the people’s information too. I currently have a client, in Mr Julian Assange, who takes Madison’s principle to what some politicians and diplomats see as extremes. WikiLeaks has certainly made people around the world better informed about what their rulers do not tell them, but to tell the US Embassy instead. This is not the place to discuss my controversial client, other than to express the hope that he remains alive to give me instructions. Joe Biden and Mick Huckabee want him treated like a terrorist, Rush Limbaugh yearns for him “to die from lead poisoning from a bullet in the brain”, while Sarah Palin, as ever shooting from the lip, says “he should be hunted down like Bin Laden” (I suppose that would give him nine more years of freedom).
These shrill, exaggerated voices calling for the messenger to be killed come unhappily from the land of the First Amendment. WikiLeaks, whatever its failings, has at least enlightened the people of many countries around the world, from Tunisia to Indonesia, who now realise what their governments have been up to and how truly corrupt those governments are. It might be thought that the most astonishing secret revealed by WikiLeaks is that US diplomacy is both principled and pragmatic and that most foreign leaders place upon the United States the heavy burden of world leadership, most urgently in dealing with Iran and the prospect of a nuclear bomb in the hands of mullahs without mercy.
It can only diminish US leadership and dim the beacon of the First Amendment, to raise that old blunderbuss the Espionage Act of 1917, death penalty and all, and aim it beyond the jurisdiction at a publisher who is the citizen of a friendly country. Nor can it be helpful to America’s reputation for respecting due process to amend it retrospectively, as Senator Lieberman has suggested. What the WikiLeaks phenomenon calls for, surely, is a cool-headed appraisal not only of US government classification policy — these cables were apparently accessibly to over 2 million public servants, including 22 year olds — but to developing international media law principles for dealing with worldwide publishers of national security information.
A sensible rule might contain these principles:
1. Citizens everywhere have a democratic right to know what a government does in their name;
2. Governments and their public servants bear sole responsibility for protecting properly classified information;
3. Outsiders who receive or communicate confidential government information should not be prosecuted unless they have obtained it by fraud or bribery or duress;
4. National security exceptions should be precisely defined, should protect the identity of sources who are at risk of reprisals but should not stop whistleblowers from revealing human rights violations – the public has, at the very least, a right to know when a war fought in its name is killing innocent civilians through illegal targeting decisions.
I do not advance these principles as definitive but as the basis for a debate that the US Justice Department should be prepared to engage in with publishers – the New York Times, Der Spiegel and The Guardian and Mr Assange included. It might end in an agreement that could be the basis for injunctive action in national courts, but not for criminal prosecution of publishers. That, surely, is wholly antipathetic to the spirit of the First Amendment.
