Thursday, 25 February 2010

Google and Italy - criminal conviction for video post

Yesterday, in a landmark ruling, Google executives were convicted for the abuse of privacy of a disabled Italian child. The boy was bullied and videoed, the video posted on YouTube in 2005, and it was viewed several thousand times over 2 months before it was notified to YouTube, who then pulled the video off the site within a day. So far, so normal. Its Notice and Take Down (NTD) - see Chapter 4 of my new book.
What is unusual is that Italian prosecutors chose to go against the E-Commerce Directive's rules on NTD and press for a prosecution of Google executives. The suspended sentences were handed out yesterday.
Reaction has been loud, centred on requirements that YouTube might have to pre-screen videos in future, which would be prohibitively expensive. But its worth considering that my blog pre-screens comments, Yahoo's Flickr site apparently pre-screens images in Germany where Google screens search results since 2002 (to avoid Neo-nazi images being displayed), and many countries are introducing laws to block even non-local content that offends against child pornography laws.
Is the E-Commerce Directive thus unraveling? Or is UK politician Tom Watson correct to state: 'This is the biggest threat to internet freedom we have seen in Europe. The only people who will support this decision are Silvio Berlusconi and the governments of China and Iran. It effectively breaks the internet in Italy'?

Wednesday, 24 February 2010

UK Parliament report on reforming privacy and libel

In response to recent cases including Moseley, the super-injunctions, libel costs and the infamous phone hacking by Murdoch's tabloids, the Parliamentary Committee on the Media has issued a large report which is short on detail but contains a lot of sensible analysis.

Saturday, 13 February 2010

Book released on Turkish Internet censorship

More here and here:

There may be different approaches to the growth of the Internet in different societies and the impact of the Internet on different nation-states may have different results. Different nation-states present a different level of economic development, respect for rights, trans-nationality, and technological sophistication. While Turkey may be considered at a developing stage with respect to the Internet, others may be far more sophisticated with regards to Internet access, use, and penetration. Inevitably, this will be reflected in the policy making process and approaches to the governance of the Internet. Because of cultural, historical and socio-political diversity, there will inevitably be divergent approaches to the growth and governance of the Internet in different European societies. For example, while the German and French governments have political fears and sensitivities about the use of the Internet by Neo-Nazis, the United Kingdom takes a more relaxed attitude to the dangers of racism but conversely has a long cultural tradition of repression towards the availability of sexually explicit material. On the other hand, the Turkish government may be more concerned about defamatory statements made in relation to state officials and politicians, other values related to the State and the dissemination of racist and terrorist propaganda. No doubt, those concerns must not lead to the violation of international standards for the protection of freedom of expression in democratic societies.

Restricted Access by Yaman Akdeniz & Kerem Altıparmak assesses the nature of Internet content regulation and censorship in Turkey by providing an overview of the current legislative regime from a critical perspective. This will include legislative attempts to regulate Internet content in Turkey as well as a critical assessment of the recently enacted Law No. 5651 on the Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publications and its related regulations. This will also include an analysis of the legal responsibilities of various actors including content providers, hosting companies, access providers (ISPs), and Internet cafes. The book also assesses how the current regulatory systems work and how websites, predominantly situated outside the Turkish jurisdiction, are blocked by court and administrative orders by giving examples. The book also assesses blocking orders which fall outside the scope of the new legislation.
Freedom of expression has been one of the key issues in Turkey’s democratisation process. The European Court of Human Rights has found Turkey in violation of the ECHR in a number of article 10 cases. The new Turkish law on Internet contains provisions that have potential to cause similar violations. Thus, this study examines the new regulations bearing this situation in mind. The book also contains an overview of international developments with regards to Internet content regulation  at the European Union, and Council of Europe levels.

In Restricted Access, the authors Akdeniz & Altıparmak argue that Law No. 5651 was rushed through the Parliament just before the Parliament was dissolved for the 2007 general elections, and it has received no broad public support before or after its enactment. More importantly, the authors identify several problems and procedural defects with the application of Law No. 5651. Furthermore, Akdeniz & Altıparmak argue that the current Turkish regime, through its procedural and substantive deficiencies, is designed to censor and silence political speech. Its impacts are wide, affecting not only freedom of speech but also the right to privacy and fair trial. In its conclusion, Restricted Access calls for the abolishment of the Law No. 5651, and calls upon the government, among other recommendations, to commission a major public inquiry to develop a new policy which is truly designed to protect children from harmful Internet content while respecting freedom of speech, and the rights of Turkish adults to access and consume any type of Internet content.

Wednesday, 10 February 2010

Fascinating presentation on TV Vest (2008) case implementation

Norwegian Media Authority explains how it is implementing the TV Vest judgment which held that banning political advertising by small political parties infringes Article 10.

Turkish 2009 law on Internet filtering

The blocking of Richard Dawkins, extremely eminent British scientist, for mocking a Turkish creationist, has increased international scrutiny of Turkish regulation, particularly in view of Turkey's attempt to harmonize its media laws with those of the European Union.

Tuesday, 9 February 2010

Brangelina suing for libel and privacy

After the apparently erroneous News of the World story - and the repeating of what may be a libel in other media outlets worldwide - Brangelina have instructed Schillings to sue Murdoch's newspaper for both Article 10 and Article 8 infringements.

Public interest and Jameel

The test for the public interest is established in Jameel v. Wall St Journal Europe [2006] UKHL 44 per Scott L.:

  • "there is ... information the public interest of which is real and unmistakeable. In relation to information of that character it makes sense to speak of the newspapers having a "duty" to publish. They and their reporters should, of course, take such steps as are practicable to find the truth of what is reported. Fairness to those whose names appear in the newspapers may require, if it is practicable, an opportunity to comment being given to them and/or an opportunity to have a response published by the newspaper. These are all circumstances the weight of which in assessing whether a report should be protected by qualified privilege will vary from case to case."

Baroness Hale:
"It should now be entirely clear that the Reynolds Defence is a "different jurisprudential creature" from the law of privilege, although it is a natural development of that law. It springs from the general obligation of the press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information. It is not helpful to analyse the particular case in terms of a specific duty and a specific right to know. That can, as experience since Reynolds has shown, very easily lead to a narrow and rigid approach which defeats its object. In truth, it is a defence of publication in the public interest."
"This does not mean a free for all to publish without being damned. The public only have a right to be told if two conditions are fulfilled. First, there must be a real public interest in communicating and receiving the information ...
Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. But one would normally expect that the source or sources were ones which the publisher had good reason to think were reliable, that the publisher himself believed the information to be true and that he had done what he could to check it."

Is there a contrast with the ECHR, notably in LINDON (AND OTHERS) v FRANCE where J. Loucaides may indicate that some of its past decisions may have gone too far in protecting Article 10 rights against Article 8:

The suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and encourages the overall quality of public debate through a chilling effect on irresponsible journalism... The prohibition of defamatory speech also eliminates misinformation in the mass media and effectively protects the right of the public to truthful information. Furthermore, false accusations concerning public officials, including candidates for public office, may drive capable persons away from government service, thus frustrating rather than furthering the political process.

The right to reputation having the same legal status as freedom of speech as explained above is entitled to effective protection so that under any circumstances, any false defamatory statement, whether or not it is malicious and whether or not it may be inevitable for an uninhibited debate on public issues or the essential function of the press, should not be allowed to remain unchecked.

One should not lose sight of the fact that the mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally, or occasionally even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. Such restraint should include the duty to investigate defamatory allegations before rushing into print and the obligation to give an opportunity to the persons affected by their defamatory stories to react and give their own version. Furthermore, they should remain legally accountable to the persons concerned for any false defamatory allegations.  Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.

Friday, 5 February 2010

OSCE Asks Turkey To Change The Laws Allowing Internet Blocking

27 January, 2010 

OSCE (Organization for Security and Cooperation in Europe) Media Freedom representative Miklos Haraszti asked the Turkish Government on 18 January to change their Internet law in order to observe OSCE commitments and other international standards protecting freedom of expression.
A survey commissioned by Haraszti's office, analyzing Turkey's Internet Law in force since 2007, has shown that based on the respective law, the Turkish authorities were able to block the access to Internet of about 3700 websites. These sites included foreign websites such as YouTube, Geocities, DailyMotion and Google, blocked by court orders and administrative blocking orders issued by the Telecommunications Communication Presidency (TIB).
The study also shows a lack of transparency in relation to the blocking orders issued either by the court or TIB and the fact that TIB has not made public the blocking statistics since May 2009.
"The impact of the current regime and related deficiencies are wide, affecting not only the freedom to speak and receive information, but also the right for blocked websites to receive a fair trial," says the study.
In his statement to the Turkish authorities, Haraszti said: "In its current form, Law 5651, commonly known as the Internet Law of Turkey, not only limits freedom of expression, but severely restricts citizens' right to access information."
Haraszti believes that even is some of the content of the blocked sites is considered bad such as child pornography, the law is not fit to sanction it. "Instead, by blocking access to entire websites from Turkey, it paralyzes access to numerous modern file-sharing or social networks."
OSCE representative considers that some of the reasons for blocking sites are "arbitrary and political, and therefore incompatible with OSCE's freedom of expression commitments." He also said that the Turkish law was failing to safeguard freedom of expression and criminal code clauses were used against journalists who risked ending up in jail.
The main recommendation of OSCE is therefore to reform or abolish the Turkish Internet Law. "I hope that the Turkish authorities will soon remove the blocking provisions that prevent Turkish citizens from being part of today's global information society," stated Haraszti
Report of the OSCE Representative on Freedom of the Media on Turkey and Internet Censorship (11.01.2010)
Turkey blocking 3,700 websites, reform needed: OSCE (18.01.2010)
OSCE Press release- Turkey's Internet law needs to be reformed or abolished, says OSCE media freedom representative(18.01.2010)

Monday, 1 February 2010

Libel law in the UK - too much reform?

LSE/UEA authors suggest we should be careful that reform does not altogether remove the reasons for defamation law:
The adoption of the many current proposals to reform the laws of defamation would leave the media free to publish false allegations with little fear of being put to redress, according to a report just published by Dr Andrew Scott (LSE, Department of Law) and co-author Professor Alastair Mullis (University of East Anglia). The report Something Rotten in the State of English Libel Law? argues that the public debate – as being played out in the media – concerning the reform of libel law has been one-sided. It highlights and respond to criticisms of libel law that Scott and Mullis believe are based on partial understandings of the existing law.
    Dr Scott says: ‘Press freedom and discussion are vital to democracy. Misuse of an overbroad, and particularly an overly costly, libel regime can impact upon investigative journalism, scientific discussion, and the important work of NGOs. However, the reality of most libel actions, which involve bullied and harassed claimants challenging damaging inaccuracies perpetuated by multinational media corporations has somehow been lost from the debate.’