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.

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.”

More privacy and defamation reading

1. The human rights assessment of the UK Digital Economy Bill (thanks to Pangloss)
2. Private Eye's analysis of litigation strategies by the most energetic law firm in London
3. Privacy and the UK media - academic analysis of the Moseley application to the ECHR
4. A leading article by an Irish legal academic on their Defamation Act 2009 (thanks Lex Ferenda)
5. A comprehensive academic paper on Internet censorship in South Korea.

OSCE Asks Turkey To Change The Laws Allowing Internet Blocking

27 January, 2010 

» 

Access to information | Freedom of speech

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)
http://www.osce.org/documents/rfm/2010/01/42294_en.pdf

Turkey blocking 3,700 websites, reform needed: OSCE (18.01.2010)
http://www.reuters.com/article/idUSTRE60H2WJ20100118?type=technologyNe...

OSCE Press release- Turkey's Internet law needs to be reformed or abolished, says OSCE media freedom representative(18.01.2010)
http://www.osce.org/fom/item_1_42372.html

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.’