The Royal Charter that would establish a body to oversee press regulation was due to be referred to the Privy Council today. But industry bodies representing the press have filed an injunction against that happening. The court will examine the application this morning. Legal blogger and former government lawyer Carl Gardner says judges may grant the injunction for the time being, even as he doubts that any legal challenge by the press will ultimately succeed.
I have worked for (and with) some courageous people at English PEN. I am often struck by the personal cost of exercising your right to free expression, and how damaging to life and finances taking stand can be.
For Banned Books Week, I was asked by Tor.com to write a piece on these people, the ‘Outliers’ who do the thing that most people would not.
Have you ever been stood up by Cory Doctorow? I have. Back in 2010 I was due to interview him at the London Book Fair about his latest novel For The Win. I read his entire back catalogue and planned loads of insightful questions, but when the time came for the interview in the PEN Literary cafe, he didn’t show up. Later, I received an e-mail from him with a preposterous and obviously made-up excuse about how his plane had been grounded by a volcano. So it was me on the stage with an empty chair. (My hastily written chat standard performance poem “The Empty Chair a.k.a Cory Doctorow Is Not Here Today” rocked YouTube, with literally dozens of views.) Continue reading
I’m delighted to have spoken to the Washington Post for an article about the Twitter abuse furore:
“The worry is that the abuse button will be abused,” said Robert Sharp, a spokesman for English PEN, a literary group that promotes freedom of expression. “It puts the power of censorship into the hands of those who would be offended, which is fine when it’s a rape threat. But the same technology will be used by Christians to censor atheists, used by atheists to censor Christians, and so on.”
Credit where its due: Tom Phillips’ article on theTwitter abuse button was fresh in my mind when I spoke to the WaPo journalist. And there’s a huge body of work out there on the issue of ‘offence’ as a trigger for censorship. My turn of phrase “those who would be offended” is not natural speech, but its the sort of thing that springs to mind when you’ve been marinated in these kinds of arguments.
As is my wont, I made a book to illustrate this. Physical objects are useful props in debates like this: immediately illustrative, and useful to hang an argument and peoples’ attention on.
James Bridle is probably best known as the artist who first articulated ‘The New Aesthetic‘, but he has run many projects on books and technology. His project ‘The Iraq War‘ is a favourite of mine – the entire Wikipedia Edit History of the ‘Iraq War’ article, from 2005-2009, which stretches to twelve volumes. He’s also the creator of a Book of Tweets.
James’ projects are the inspiration of one of my own – The Defamation Act 2013: Complete & Unabridged. It collects together, in chronological order, every single parliamentary document published during the passage of the recent reform of our libel law. These include the various versions of the Bill (which I have previously published in a spliced together version, ‘Tracked Changes in the Defamation Bill‘), the parliamentary Hansard transcripts of the debates; and the amendment papers. Continue reading
According to the Mail on Sunday, David Cameron recently learnt of a sex-scandal involving prominent members of his government. ‘For legal reasons’ the paper cannot name the people involved.
On Twitter, people are cautious. Many cite the injunction that prevents anyone naming names. The judgement in the Lord McAlpine vs Sally Bercow is fresh in everyone’s minds. Even guessing may amount to contempt of court.
During the ‘super-injunction’ furore in 2011 (which culminated in Ryan Giggs being named in Parliament as having taken out such an order to prevent a kiss-and-tell story by Imogen Thomas) I recall that both the Daily Mail and the Daily Telegraph printed ridiculous puff pieces about an actor who had been named on Twitter as having used a prostitute and then taken out a super injunction to prevent the story from vein reported.†. Both pieces called the actor a family man, and the Telegraph cleverly worked certain film titles into the piece that, for those in the know, referenced the sordid tale.
For those in the know.
It may be that Monday’s newspapers contain similar clues. Those who usually try to solve the cryptic cross words may try their luck and deciphering the hints and breadcrumbs buried within the newspapers coverage. In the coming days, look out for odd turns of phrase, and out-of-place or fawning profiles of cabinet ministers in the newspapers. They will be the *innocent face* of the mainstream media, drawing attention to those in the know.
This is all desperately problematic. In the next few days, we may find ourselves in a situation where the majority of the political and media class will know the identity of the Downing Street adulterers. People like me, who exist on the periphery of that world and have a couple of friends in journalism, will probably find out too. That’s if Twitter doesn’t get there first. And everyone who knows will probably tell their partners and a few other close mates, “so long as you don’t broadcast it”.
And if the group of those in the know is sufficiently large, then the privacy of the people involved has not been protected. Their reputation will have been damaged.
In fact, I reckon that I am a pretty good canary-down-the-mine for this. There must be literally thousands of people like me who work on the fringes of politics and/or spend a fair chunk of time on the Internet. Assuming that the identities are not revealed in a big newspaper splash (a possibility) then I will posit that when I discover the identities, then in no sense can it be said that the privacy or the reputation of the people involved remains protected..
This is not a free speech manifesto and I will not break any injunction. Social media and blogging are both forms of publishing, legally no different from writing a newspaper article.
My point is this – there may come a moment in the next few days or week, when there will be common knowledge facts that no-one will speak about in the open, and everyone will play along with the charade that the names remain unknown.
And when societies participate in a collective omertà, we should start to get worried.
Well, that did not take long. I have now discovered the names of the people involved. My methods were so rudimentary I can confidently say that many, many people are now in the know. It will make it easier to spot cryptic clues in the Monday papers much easier (but less fun).
†As someone who likes to link to what I am referring to, it is incredibly frustrating to be unable to do so in this case… because I think the injunction may still be in place. I will investigate and post the links if it is legal to do so!
I was delighted to be asked to speak on a panel at the Liberty Annual Conference yesterday. I took part in the ‘Is Speech Free Online?’ discussion with Ian Dunt of politics.co.uk and the Erotic Review, and Bella Sankey, Liberty’s policy director. Martin Howe was the chair.
Speaking first, my co-panellist Ian Dunt made a pertinent point about how the low financial barriers to free speech online are also the reason that online speech may be threatened. People do not need financial reserves in order to publish online – It is cheap and quick. However, this lack of money also means they are more vulnerable to being sued by those who do have money and power. The publishing divide is not between online/offline, but between those with lawyers, and those without.
I began own my remarks by noting that speech was most certainly not free online in other parts of the world. I cited the recent manoeuvrings to criminalise online dissent by the Azerbaijan parliament; China shutting down dissident Sina Weibo accounts; and Fazil Say’s suspended sentence in Turkey.
I spoke about the recent prosecutions from remarks made on social media, and the fact that current laws include the word ‘offensive’ as a trigger for prosecution, which is open to abuse. I noted how the immediacy of social media messaging meant that immature political views follow you around long after they should have been discarded, but that Tweeting and Facebooking are forms of publishing and could never be cordoned off as some special type of speech that is subjected to different laws. Parents and teachers need to help the young ‘uns be savvier about what they choose to publish online. I finished by warning that we cannot take our free expression for granted when we use social media spaces that feel public, but are in fact owned by corporations with a profit motive to censor if it is in their financial interests to do so.
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During the Q&A I also managed to slip in a few re-tweetables about the nature of free speech and ‘counter-speech’.
Here’s the view from the panel just before the start of the session, as people began to filter in.
The folk at the brilliant OurKingdom blog commissioned a piece from me on the next steps for Libel Reform. The crucial issue:
During the Parliamentary debates, the Government flatly rejected proposals to extend the Derbyshire principle to private companies spending taxpayers money. British citizens are therefore confronted with a looming democratic deficit. As private companies take over the running of prisons, waste collection, school dinners, care homes, and large swathes of the NHS, the space to criticise them is squeezed. By leaving the Derbyshire principle to the courts to develop further, the Government have introduced an unwelcome ambiguity into our public discourse, especially at the local level. It will be left to citizens to closely monitor how the big subcontractors behave in this area. Any hint that these corporations are stifling public criticism through use of the libel law must be met with a public outcry.
Read the whole article, What next for libel reform?, on the OurKingdom blog.
No, not a day where we pick someone to defame. Instead it is the final parliamentary debate on the Defamation Bill.
Following this process has been a great way to watch how law-making really happens. In this case, the Government published a draft Bill for consultation. The proposed law was then debated on the floor of the House of Commons, then by a smaller group of MPs in a Public Bill Committee (days 1, 2, 3, 4 and 5), then again in the House of Commons. A similar process took place in the House of Lords, with a more generalised debate preceding detailed scrutiny in a Grand Committee (days 1, 2, 3 and 4), followed by more debates.
Now, the amendments made to the Bill by each House are being debated and accepted by the other. Today, the House of Lords have one final aspect of the Defamation Bill to consider, which is the limits that should be placed on ‘non-natural persons’ (i.e. companies and associations) that wish to sue.
The Government have already agreed that a corporation must show financial loss if they want to claim that they have suffered serious harm, but is still dragging its feet on what access private companies delivering taxpayer-funded services should have to the libel law.
Currently, central government and local councils cannot sue their citizens! This is established by the common-law Derbyshire principle, which protects unhibited criticism of democratically elected institutions and their agencies. However, the trend towards contracting out public services to private companies means that this principle has been undermined. For example, you can criticise a publically run prison, or a local council’s waste collection service… but if you criticise a private prison or a sub-contracted bin collection service, then you run the risk of a libel threat!
With the reforms to the NHS meaning more services will be commissioned from private companies, this loophole will only get bigger. Imagine if your healthcare was managed poorly, and a blog or a tweet about it prompted a lawyers letter!
Following the Royal Charter announcement earlier this week, there has been much concern over how the new system for press regulation will affect bloggers. English PEN expressed concerns about this immediately after the Leveson Report was published. On Labour List, Mark Fergerson called the Internet ‘The Elephant in the Room‘ and in the Guardian, Emily Bell said the Royal Charter was ‘illiterate‘ about the Internet. Since this problem arises from the lack of discussion about the Internet in the Leveson Report, it is worth revisiting that document to see what Leveson actually said.
It is technically wrong to say that Leveson only devotes one page to the Internet in his entire 2,000 page report. In Volume I, pages 164 to 178 are given over to describing part of the online publishing ecosystem – Huffington Post, Popbitch, and Guido Fawkes. However, there are only five paragraphs of actual analysis on the Internet, on pages 736-37 (Volume II). Leveson says:
Many editors and commentators have argued that the burgeoning of the internet is likely to render irrelevant much of the work of the Inquiry even assuming that it has not already done so. If, for example, celebrity X’s privacy is violated online, then the metaphorical cat is well out of the bag, and there is no reason why open season should not exist in the printed media. …
In my view, this argument is flawed for two reasons. … the internet does not claim to operate by any particular ethical standards, still less high ones. Some have called it a ‘wild west’ but I would prefer to use the term ‘ethical vacuum’. This is not to say for one moment that everything on the internet is therefore unethical. That would be a gross miischaracterisation of the work of very many bloggers and websites which should rightly and fairly be characterised as valuable and professional. The point I am making is a more modest one, namely that the internet does not claim to operate by express ethical standards, so that bloggers and others may, if they choose, act with impunity.
The press, on the other hand, does claim to operate by and adhere to an ethical code of conduct.
This, in a nutshell, is the justification of focusing on regulating the tradition print media, and not on the wider publishing ecosystem. Superficially, Lord Justice Leveson’s reasoning seems persuasive, but I think he mistakes precisely what ‘freedom of the press’ actually is. Writing in the New Statesman last July (i.e. before Leveson reported), legal blogger David Allen Green explained the term:
The “press” to which it refers is often identified by many in England with the big-P Press of Fleet Street: the professional journalists who have “press cards” and go along to “press awards” … But this may not be the best way of understanding the term. In fact, the expression “freedom of the press” significantly predates the existence of the modern newspaper industry, which was largely a product of the late 1800s and early 1900s. Instead, the expression “freedom of the press” came out of the great age of pamphleteering and protest which occurred during and after the civil wars in Britain of the mid-1600s…. In this way “freedom of the press” was not some entitlement of a media elite but a more basic right of anyone to circulate their ideas more widely than they could do simply by themselves.
So perhaps Leveson is wrong to suggest that bloggers and the Internet exist in an ‘ethical vacuum’. The act of publishing what you wish, without interference, is inately a ethical act, excercising moral rights, that is available to everyone. Its wrong to create a two-tier ethical system, with bloggers and print journalists on different planes. And it is wrong to create enshire a two-tier regulatory system in law, too.
The double-Booker winning author Hilary Mantel has caused controversy, after delivering an uncompromising critique of the Duchess of Cambridge. The lecture she gave to the London Review of Books is now online: audio and text.
The Daily Mail and the Metro seem to have misinterpreted Mantel, reporting the speech as a ‘scathing’ and ‘venomous’ attack on the Duchess. But that is not the author’s sentiment at all. Instead, Mantel is critiquing the way in which the illusion of Royalty turns women into objects, vessels, and wombs. I am sure that Kate herself would find the analysis uncomfortable, but the attack is on the Monarchy as a whole, and on media outlets like the Mail and the Metro that feed off the images of Royal consorts.
The backlash towards Mantel puts me in the mind of the Orwell (or was it Hearst) quote: “Journalism is printing what someone else does not want printed: everything else is public relations.” The speech is a form of social and cultural criticism rather than journalism, but I think the Orwell/Hearst sentiment applies equally. Mantel’s negative comments about Royalty are precsiely the sort of thing that other people – call them Monarchists, or ‘The Establishment’, or social conservatives – would prefer had been left unsaid. That fact is, in itself, a reason to applaud Hilary Mantel for saying it alound and in public. This speech should shock us into reconsidering the role of Royalty in our society. It should make us revise our stratospheric expectations of the Duchess of Cambridge, too.
It is worth noting that this kind of speech act is precisely the sort of thing that gets censored in other countries. Thailand has strict lèse-majesté laws and many, if not most, other countries, have criminal defamation or ‘scandalising’ laws that would have seen Mantel down at the police station for an interview, or on trial, or in prison. In the UK, we finally abolished our dead-letter analogues in 2009. It should be a source of pride that one of our most celebrated novelists is able to make such controversial statements, unfettered.
This is precisely the kind of social leadership that we need from our authors. I wonder what would have happened if a politician had said the same thing?