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Reversing the Ratchet

Busy times for me at the moment, but this is an aide memoir / place-holder for some later posts.

Its now undeniable that the current British Government is damaging our democracy. Several measures either proposed or enacted that strengthen the power of the executive, reduce accountability and/or threaten free speech.

  • The intent to scrap the Human Rights Act
  • The measures in the Police, Crime, Sentencing and Courts Act 2022 which allow the suppression of protests which cause a ‘nuisance’
  • Eroding the independence of the Electoral Commission
  • Insisting on the regressive ‘First Past The Post’ method for elections that previously used something more proportional.
  • The Online Safety Bill, which would impose impossible moderation standards onto social media companies and hand too much power to the Government to suppress speech it doesn’t like
  • Measures to constrain Judicial Review
  • New plans to curb the rights of workers to strike
  • The undermining of ministerial standards and accountability, as demonstrated by the way the Prime Minister ignored the findings of a report that the Home Secretary bullied civil servants
  • The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 allows the security services to authorise criminal conduct in new, unaccountable ways.

These are the ones I can think of off the top of my head. There are probably more.

Continue reading “Reversing the Ratchet”
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Time to Ditch ‘Word Count’ in Favour of Bytes

There’s an amusing detail in the judgment of Mr Justice Peel in WC v HC (Financial Remedies Agreements) [2022] EWFC 22:

The parties’ s25 statements were limited to 20 pages of narrative.  Para 5.2 of PD27A mandates that narrative statements, among other documents, shall be typed in “a font no smaller than 12 point and with 1½ or double spacing”. H complied. W’s statement purported to comply in that it consisted of 20 pages, but because it used smaller font and spacing it was, in fact, about 27 pages compressed within the 20 page limit provided for by me.

— Paragraph 1(i)

This is a classic tactic that has been used by students the world over since the dawn of the word processing age. When I did it as a school boy, the aim was to increase the margins and font spacing so that one had to write less. Here, the tactic was deployed in order to write more.

Since we routinely use computers for everything, its time we abandoned the analogue concept of ‘pages’ as the standard for submissions. Why not simply specify a word count?

Or better still, bytes. There are 1,498 bytes of text in this blog post, for example. A 20 page document typeset at 12 point, 1.5 lines amounts to 45 to 50 Kb of text. Imposing a rule based on data would kill off any typesetting trickery, but also incentivise plain language — because drafters would not be penalised for using three shorter words in preference to one longer word.

(Hat-tip to Gordon Exall and the superb Civil Litigation Brief blog)

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When newspapers conspire to suppress free speech

Earlier this week, eminent legal journalist Joshua Rozenberg wrote about a legal battle between the BBC and the government over the naming of a ‘spy.’ The Attorney-General, Rt Hon Suella Braverman MP, had sought to prevent the BBC naming an intelligence operative in one of their reports.

Such skirmishes over the limits of freedom of expression, balanced against national security, are nothing new. We recall the Spycatcher affair; and the highly questionable detention of David Miranda.

What piqued my interest about this case was the fact that the Daily Telegraph twice published briefings against the BBC, quoting anonymous and therefore entirely unaccountable government “sources.”

In January, that source told the Telegraph that the person whom the BBC wanted to identify was a “spy … working abroad.” Earlier this week the same newspaper reported that “there would be huge disquiet” if the report went ahead, and that national security would be compromised.

But now it turns out that was nonsense. The spy was a domestic informer (those who work for the police, or who watch Line of Duty, will be familiar with the term ‘CHIS’) who told women that he worked for MI5 in order to terrorise and control them.

So here we see something quite depressing: a news outlet has been manipulated by the government into publishing misinformation about, and veiled threats against, other journalists.

Now I’m sure that Helen Cahill, Charles Hymas and Christopher Hope, authors of the Daily Telegraph stories, would be mortified to think that they were complicit in the chilling of press freedom. But that is the effect of their quoting of an anonymous source that has, as Joshua Rozenberg points out, misled them.

This is not an argument for ending the practice of off-the-record chats and anonymous sources. Indeed, anonymity is a crucial aspect of free speech.

But there are, I suggest, two kinds of anonymous briefings.

  • Those where the anonymous source provides negative or ‘inculpatory’ information about the government or powerful organisation; and
  • Those where the anonymous source provides positive or ‘exculpatory’ information about the government.

Sources providing ‘exculpatory’ information carry far less of a burden than whistle-blowers. They are unlikely to be hounded by anyone investigating a leak. Whatever it is they say is unlikely to be met with a campaign of denial.

The difference between the two kinds of leaker is stark. When a leaker is ‘exculpatory’ the journalist and their editor need a different — and probably less credulous — approach to the source. Otherwise they risk becoming government stenographers and freelance propagandists for people who have a large enough platform already.

Note: This was written in February but for some reason wasn’t actually published at that time time. This post went ‘live’ on 27th July 2022, when this issue was no longer a ‘live’ story.

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Online Safety Bill: Sweeping Ministerial Harms

A third post in a trilogy of analyses of the draft Online Safety Bill.

The Joint Parliamentary Committee scrutinising the government’s Draft Online Safety Bill concluded its evidence sessions on 4 November. The group of MPs and Peers are now writing their report, which will include recommendations for amending the Bill to address the issues identified by those who gave evidence.

One area of particular concern to human rights groups, including ORG, is the powers given in the Bill that would allow the Secretary of State to direct and influence the work of the regulator, and therefore interfere with how the social media companies operate their services.

Read the rest of this post on the Open Rights Group blog.

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What’s The Harm In The Online Safety Bill?

Another post analysing aspects of the draft Online Safety Bill.

Throughout the development of the government’s Online Harms policy, a central concern of ORG and other human rights organisations is how any legally mandated content moderation policy could practically be achieved. The algorithmic moderation deployed by most social media companies is notoriously literal, and the human review of content is often performed by people who are unaware of the context in which messages are sent.

These flaws result in false positives (acceptable content being removed) and false negatives (unacceptable content remaining visible).

The draft Online Safety Bill considers two distinct types of content: illegal content, and content that is legal but which has the potential to cause harm. The social media companies will have to abide by OFCOM’s code of practice in relation to both.

The definitions of these two types of content are defined are therefore crucial to the coherence of the new regulatory system. Ambiguous definitions will make it harder for social media platforms to moderate their content. If the new system causes more acceptable content to be taken down, while allowing illegal and/or harmful content to remain on the platforms, then the law will be a failure.

Read the rest of this post on the Open Rights Group blog.